ii  iiiiiijiiliifcis 


liiffif; 


ii|i|iiii^ 


UNIVERSITY  OF  CALIFORNIA 
AT   LOS  ANGELES 


THE  GIFT  OF 

MAY  TREAT  MORRISON 

IN  MEMORY  OF 

ALEXANDER  F  MORRISON 


FRAILTIES 
OFTHEJURY 


By 
HENRY    S.    WILCOX 

OF  THE 

CHICAGO  BAR 


AUTHOR   OF 

FOIBLES  OF  THE  BENCH,   FOIBLES  OF  THE 
BAR,  A  STRANGE  FLAW,   THE  TRIAL 
:      OF  A  STUMP  SPEAKER,   ETC. 


Published  by 

LEGAL  LITERATURE  COMPANY 

Chicago,  III. 


Copyrighted  1907 

by 

HENRY    S.    WILCOX 

Entered  at  Stationers  Hall 

London,  Eng. 


PREFACE. 


In  "Foibles  of  the  Bench,"  the  first  volume 
of  this  series,  an  attempt  was  made  by  the  author 
to  illustrate  some  of  the  lighter  faults  frequently- 
exhibited  by  occupants  of  the  bench,  and  the 
effect  these  have  had  upon  the  administration  of 
to      justice.    Certain  abuses  that  have  become  preva- 
?..       lent  in  court  proceedings  were  also  pointed  out 
a      and  changes  proposed  to  remedy  them.       The 
volume  met  with  a  kind  reception  from  bench 
and  bar  and  the  public  press,  and  was  soon  fol- 
2      lowed  by  another  volume,  entitled  "Foibles  of 
%      the  Bar."      In  this  were  noted  and  illustrated 
%      some  of  the  common  mistakes  of  lawyers  that 
2      tend  to  impair  or  prevent  success  at  the  bar,  and 
ij      other  methods  were  suggested  as  improvements. 
<      This  latter  volume     has  met  the     same  cordial 
»>      greeting  accorded  to  the  first,  and  thereby  has 
S      the  author  been  encouraged  to  attempt  the  some- 
o      what  bolder  task  of  writing  this  book  upon  the 
t      frailties  of  the  jury. 

«9  He  wishes  to  assure  the  reader  that  he  is  not 
conscious  of  any  personal  prejudice  against  the 
twelve  men  in  the  box.     On  the  contrary,  they 

432668 


4  PREFACE 

seem  to  him  like  personal  friends  who  are  at- 
tached to  him  by  ties  formed  from  the  associa- 
tions of  many  years.  Almost  from  boyhood  he 
has  stood  before  the  jury  pleading  for  their  ver- 
dicts, watching  their  open  faces  and  feeling  the 
thrills  of  delight  or  pangs  of  woe  sweep  through 
his  frame  as  they  appeared  to  smile  or  frown 
upon  his  plea.  The  meager  cottage  where  our 
youth  was  spent  must  always  have  a  hallowed 
place  in  mind.  Our  pleasures  there  we  cherish 
long,  our  sorrows  .soon  forget,  and  though  the 
time  of  youth  was  but  an  April  day  with  more 
of  cloud  than  sun,  to  it  we  fondly  cling  and  hold 
in  fond  remembrance  all  those  whose  lives 
were  linked  with  ours;  so  must  the  trial  lawyer 
ever  feel  when  thinking  of  the  jury,  for  it  has 
formed  so  large  a  share  in  his  associations.  The 
jury  box  seems  to  the  author  like  a  sacred  shrine 
where  he  has  worshipped  for  many  years,  and 
now  to  hold  its  occupants  up  to  public  gaze  as 
frail  and  faulty  appears  almost  profane.  Yet 
he  is  forced  to  this  by  facts  and  observations 
which  he  can  not  overlook.  The  faults  herein  .set 
forth  are  not  exaggerated  in  the  least  degree,  and 
if  they  fail  in  any  way  to  state  the  facts  exactly 
it  is  because  they  are  too  favorable  to  the  jury. 
The  characters  set  forth  have  not  been  taken 


PREFACE  5 

from  the  worst,  but  fairly  represent  the  average 
in  the  types  depicted.  No  search  is  made  for 
muck  or  rubbish  and  the  author  has  not  had  the 
slightest  wish  to  speak  disparagingly  of  that 
large  class  of  men  who  fill  the  jury  box.  Since 
first  he  saw  the  light  his  relatives  and  truest 
friends  have  been  of  those  who  had  no  special 
skill  for  service  of  this  kind,  and  he  has  never 
held  that  snobbish  notion  that  fails  to  recognize 
the  value  and  true  worth  of  men  not  trained  for 
functions  such  as  this.  Life  is  too  short  and 
fields  of  labor  are  too  vast  for  anyone  to  fit  him- 
self for  all.  Each  one  must  choose  a  place  and 
fit  himself  for  that  if  he  would  do  its  duties 
well,  and  each  one  in  the  place  for  which  he  has 
been  trained  may  thus  give  service  of  the  high- 
est class  and  merit  greatest  praise.  Thus  con- 
stituted will  the  vast  machine  which  makes  our 
social  life  be  made  to  move  in  perfect  harmony, 
and  no  part  be  esteemed  as  better  than  the 
others.  This  is  the  view-point  that  the  writer 
holds,  and  this  he  asks  the  reader  to  adopt  in 
judging  of  the  jury,  that  he  may  see  these  men 
as  worthy  in  the  sphere  where  they  are  skilled 
as  any  lawyer  at  the  bar  or  judge  upon  the 
bench,  but  being  forced  into  a  task  for  which 


6  PREFACE 

they   are  not  trained   are   like   all   other   men, 
unfitted  for  it. 

This  volume  the  writer  hopes  some  time  to  fol- 
low with  one  entitled  "Fallacies  of  the  Law," 
wherein  he  will  point  out  the  many  features  of 
the  law  that  are  unjust  and  based  on  fictions 
and  false  doctrines. 


CHAPTER  I. 


Origin  and  Functions. 


That  body  which  we  call  the  petit  jury  came 
from  remotest  times.  .Tradition  says  King 
Alfred  gave  it  birth  more  than  a  thousand  years 
ago.  Of  this  there  is  no  record,  and  the  best 
opinion  considers  it  a  Frankish  product  which 
followed  William  into  Britain  after  the  Norman 
conquest.  When  Britain's  barons  wrenched  the 
Magna  Charta  from  King  John  and  formed  the 
firm  foundations  of  the  English  law,  it  was  pro- 
vided in  that  precious  charter  that  none  should 
forfeit  life  nor  lose  his  freedom  or  his  estates 
without  the  judgment  of  his  peers.  This  clearly 
meant  a  jury  trial  as  then  existing,  and  by  this 
act  this  institution  then  in  use  was  firmly 
grafted  into  English  law  and  came  with  it  across 
the  sea.  When  our  great  sires  shook  off  the 
British  yoke  they  still  retained  the  English  law, 
the  jury  with  the  rest,  and  every  state  still  has 
the  system  with  slight  change.  According  to 
the  English  law,  now  called  the  Common  Law, 
the  sheriff  wTote  the  names  of  forty-eight  free- 


8  FRAILTIES   OF  ,TUE   JURY 

hoklfivs  t»r  tin."  fp'.mty  where  the  ease  was  tried 
in  presence  of  tlie  attorneys  on  both  sides,  who 
each  could  strike  off  twelve ;  the  twenty-four 
reniainin<r  nuide  the  panel.  Instead  of  this,  in 
many  states  statutes  have  changed  the  Common 
Law  and  names  are  placed  on  slips  and  from  a 
box  containin<j:  many  such  an  officer  of  court — 
often  the  clerk — with  bandaged  eyes  draws  out 
these  slips  until  he  fills  the  panel  with  the  num- 
ber fixed  by  law.  This  varies  in  the  different 
states,  but  usually  is  twenty-four.  Then  when 
a  case  is  called,  to  get  a  jury  for  the  trial  the 
names  of  these  are  placed  in  some  receptacle, 
from  which  the  clerk  or  other  officer  should  draw 
at  random,  one  by  one,  until  twelve  are  drawn. 
These  make  the  trial  jury.  And  to  be  qualified 
all  must  reside  in  that  same  county  where  the 
court  is  sitting,  and  there  be  legal  voters;  they 
should  not  be  affined  by  blood  or  marriage  Avith 
either  party,  nor  older  than  a  certain  age;  they 
should  have  power  to  read  and  write,  and  have 
no  information  on  the  case  that  causes  an  un- 
qualified opinion.  Each  is  examined  and  maj^  be 
challenged  if  unqualified,  and  so  excused.  In 
lieu  of  those  thus  challenged  others  may  be 
drawn  until  the  panel  is  exhausted,  and  then  the 
sheriff  may  summon  persons  standing  by  to  act 


FRAILTIES   OF  TEE  JURY  9 

as  jurors.  These  are  known  as  talesmen,  and 
may  be  challenged  like  the  others.  Most  states 
allow  of  challenges  np  to  a  certain  number,  for 
which  no  cause  is  shown.  When  all  the  chal- 
lenges are  made,  the  jury  thus  impaneled,  com- 
posed of  twelve,  are  sworn  to  try  the  case  on  evi- 
dence adduced  in  court  and  thereon  render  a 
true  verdict  according  to  the  law. 

Go  to  a  common  court  room  and  see  the  trial 
of  a  case.  At  one  end  behind  an  ornamented 
desk  filling  a  large  ui^holstered  chair  you  see  a 
careworn,  dignified-appearing  man.  This  is  the 
judge,  the  place  he  occupies,  the  bench.  In  front 
of  this  is  built  a  fence  behind  which  stand  or  sit 
some  anxious-looking  men,  who  show  some  evi- 
dence of  culture.  These  represent  the  bar.  Near 
them  a  common  table  stands,  on  which  are  books 
and  papers,  pens  and  ink,  while  seated  near  are 
suitors  whom  they  call  their  clients.  Some- 
where about  the  bench,  ofttimes  in  front,  but 
oftener  at  the  right,  we  see  another  desk,  behind 
which  sits  an  unassuming  man.  This  is  the  clerk 
who  keeps  the  files  and  waits  upon  the  judge; 
and  near  him  stands  a  potentate  Avhose  majesty 
sometimes  obscures  the  glory  of  the  bench;  this 
is  the  bailiff,  who  speaks  short-winded,  chopping 
off  his  words,  while  he  commands  good  order  in 


10  FJi'AlLTIElS   OF   THE   JURY 

tlie  court.  On  one  side  of  the  room  are  placed 
two  tiers  of  straight-backed  chairs.  On  these  we 
see  a  dozen  men  of  various  types  and  dressed  in 
different  fashions.  In  cities  they  may  be  of  dif- 
ferent colors  and  of  many  nations,  some  old, 
some  young,  some  large,  some  small,  most  looking 
weary  and  demure,  twisting  and  squirming  in 
uneasy  seats.  These  are  the  jury,  and  the  plat- 
form where  they  sit  is  called  the  jury-box.  This 
usually  is  at  the  judge's  left.  Between  the  bench 
and  where  they  sit  is  placed  a  chair  or  stool  on 
which  the  witness  sits  in  giving  evidence.  This 
is  the  witness-stand.  A  few  old  chairs  or  benches 
sit  about  the  room,  on  which  are  suitors,  wit- 
nesses and  lookers-on.  Somewhere  upon  the  wall 
an  old  clock  swings  to  and  fro  its  pendulum  and 
drowsily  ticks  out  the  time,  and  in  discordant 
tones  strikes  out  the  hours.  Anxious  care  is 
seen  in  every  face ;  the  air  is  filled  with  feverish 
unrest.  This  is  the  stage  where  human  justice 
holds  the  scales  to  measure  out  the  dues  of  men. 
Now  note  the  play  that  here  takes  place:  The 
hour  arrives  at  which  the  court  should  sit;  the 
judge  appears,  the  people  all  rise  up,  the  bailiff 
proclaims  the  court  in  session,  a  case  is  called 
for  trial,  and  one  by  one  the  jurors  called  into 
the  box  and  sworn  to  answer  questions,  all  chal- 


FRAILTIES   OF   THE  JURY  11 

lenges  are  made,  the  jury  sworn  to  try  the  ease; 
the  lawyers  state  each  party's  claim,  the  wit- 
nesses then  testify.  The  judge  has  good  facility 
for  taking  notes  to  aid  his  memory  of  the  evi- 
dence. None  is  provided  for  the  jury.  The 
law^^ers  often  speak,  so  does  the  judge,  who  in- 
terrupts with  many  questions.  The  jurors  are 
embalmed  in  silence  where  they  sit  like  oysters 
when  the  tide  is  out,  save  as  they  shift  about  to 
ease  their  bodies  on  the  hard,  wood  chairs.  The 
judge  has  been  selected  for  his  learning;  the 
jury  for  their  lack  of  it.  He  passes  on  all  ques- 
tions of  the  law,  applies  the  knowledge  that  he 
has  and  seeks  for  more.  The  jury  pass  on  ques- 
tions as  to  facts,  but  can  not  use  the  knowledge 
they  possess.  Had  it  been  known  that  they  had 
such  knowledge  they  had  not  then  been  chosen. 
The  nearer  their  minds  approach  a  blank  on 
questions  they  must  try  the  better  are  they  qual- 
ified. Thus  knowledge  qualifies  the  judge,  and 
ignorance  the  jury.  Some  jurors  never  saw  a 
court  before ;  most  are  bewildered  by  the  strange 
proceeding  and  frightened  by  the  pomp  and  cere- 
mony. They  have  been  captured  by  the  law, 
taken  from  their  various  vocations  and  brought 
to  court  against  their  will.  Beside  the  gray- 
beard  sits  the  callow  youth,  the  painter  and  the 


12  Fh'AlLTlES   OF   THE   JURY 

peddler,  side  by  side,  book-maker  and  book-seller 
near  eaeh  other,  the  elerks  of  banks  and  carriers 
of  the  hod,  teamsters  and  barbers,  laborers  of 
the  common  sort,  all  confused  by  stage  fright  at 
the  part  they  are  made  to  play. 

"When  all  the  evidence  is  in  the  lawyers  on 
each  side  address  the  jury  and  in  most  flattering 
terms  dwell  on  their  honesty  and  intellect.  This 
often  is  the  only  point  on  which  the  learned  law- 
yers can  agree.  Each  ornaments  with  virtuous 
wreaths  his  client  and  his  witnesses,  and  paints 
in  darkest  hues  the  vileness  of  the  other  side. 
Each  clamoring  wildly  for  a  verdict  fills  the  air 
with  lusty  shouts  for  justice.  When  all  have 
made  their  arguments  the  judge  instructs  the 
jury.  Sometimes  the  jury  stand  while  thus  in- 
structed, straining  their  ears  and  minds  to  un- 
derstand the  words.  These  instructions  are  in 
legal  language,  containing  points  ofttimes  so 
fine  that  lawyers  scarcely  comprehend  and  the 
learned  judges  in  the  highest  courts  may  not 
agree  upon  their  meaning.  But  these  instruc- 
tions are  the  jury's  guide,  and  must  be  under- 
stood to  be  effective.  They  oft  contain  a  score  or 
more  of  legal  propositions  split  in  pieces  and 
couched  in  tangled  phrase,  ingeniously  contrived 
to  give  a  false  impression.     The  jury  thus  in- 


FRAILTIES   OF   THE  JURY  13 

structed  are  then  locked  in  a  room,  the  key  kept 
by  a  bailiff.  The  room  is  but  poorly  furnished, 
small,  and  badly  aired,  where,  huddled  in  a 
group,  sometimes  for  several  days,  they  spend 
the  long  and  dreary  nights,  without  a  chance  to 
sleep,  denied  the  comforts  of  the  felon  in  his 
cell.  This  is  done  to  force  agreement  to  a  ver- 
dict, and  not  until  the  judge  is  satisfied  they 
never  will  agree  are  they  discharged.  If  they 
agree,  they  sign  a  verdict,  return  it  into  court 
and  are  released.  The  judge  may  render  judg- 
ment on  this  verdict  or  contrary  to  it,  or  he  can 
wipe  it  out  and  hear  the  case  again.  The  suit 
may  be  appealed,  and  on  appeal  the  higher  court 
may  disregard  this  verdict  and  give  a  judgment 
to  the  other  side  or  may  remand  the  case  back 
to  the  lower  court  where  it  is  tried  again.  Some 
states  make  jurors  judges  of  the  law  in  certain 
cases.  Then  lawyers  read  their  law  books  to  the 
jury,  who  suffer  much  in  hearing  what  they  can 
not  understand.  While  juries'  verdicts  some- 
times are  set  aside  they  usually  are  not.  Judges 
prefer  to  throw  on  them  the  burden  of  decision 
where  they  can,  and  law  requires  them  so  to 
do  where  evidence  is  conflicting.  Therefore,  this 
verdict  in  many  cases  is  most  important  and 
stands  for  weal  or  woe.     They  weigh  the  evi- 


14  FRAILTIES   OF   THE  JURY 

dence  and  measure  out  the  sura  allowed  and  on 
slight  proof  may  sweep  away  the  savings  of  a 
life  of  toil,  or  send  us  to  a  prison,  or  the  gallows. 
Thus  are  our  dearest  rights  placed  in  their 
hands.  The  question  of  their  fitness  is  a  serious 
one.  Have  they  the  skill  to  do  the  Avork  pre- 
scribed, and  if  not,  wherein  they  lack,  are  ques- 
tions that  I  raise  herein. 


CHAPTER  II. 


Honesty. 


The  juror  should  be  honest.  No  base,  un- 
worthy motive  should  enter  in  his  verdict.  "When 
suits  involve  large  sums  the  jury  may  be 
tempted,  and,  when  not  firmly  rooted  in  the  path 
of  honor,  may  yield;  and  thus  the  cause  be  won 
by  him  who  has  the  largest  purse.  No  legis- 
lator yet  has  found  the  way  to  make  dishonest 
jurors  honest.  Statutes  may  bristle  thick  with 
penal  threats  as  porcupines  with  quills,  and  yet 
the  purchase  of  a  verdict  be  an  easy  trade  when 
knaves  are  on  the  jury.  Its  members  may  be 
herded  as  if  they  had  a  pestilence,  or  guarded 
like  the  prisoners  of  the  state,  and  yet  the  expert 
rascal  with  the  lusty  bribe  finds  secret  passage 
to  the  outstretched  hand.  Conscience  alone  can 
surely  guard  the  door,  and  drive  away  the 
tempter,  and  he  who  has  it  firmly  set  needs  no 
protection,  but  he  who  has  it  not  may  fall  though 
all  the  nation's  force  hedge  him  about.  Are  all 
the  jurors  likely  to  possess  this  conscience  ?  Are 
honest  men  as  plentiful  as  fish  that  one  can  seine 

15 


16  FRAILTIES   OF   THE   JURY 

a  dozen  when  he  wishes?  Are  legal  voters  of 
such  honest  fibre  that  from  a  box  containing  all 
their  names  a  clerk  blind-folded  can  draw  out 
as  many  as  he  wants  and  never  get  a  scoundrel  ? 
Some  legal  voters  Avait  around  the  polls  from 
dawn  till  dark  looking  for  buyers  for  their  votes, 
with  nothing  else  to  sell  than  these,  and  sell  to 
both  sides  if  they  can.  Some  pay  no  debts  they 
can  avoid  and  keep  no  vows  which  they  can 
break,  and  vaunt  dishonor  as  an  astute  virtue. 
Some  claim  all  persons  have  a  price,  and  he  who 
gets  it  not  is  slow;  some  reverence  much  a  fin- 
ished rascal,  regarding  crimes  well  done  as  noble 
acts.  Will  not  the  names  of  these  be  taken  from 
the  box  ?  Where  are  the  merchants  selling  dam- 
aged goods,  puffing  their  sales  in  scarehead  ads 
and  offering  goods  below  their  cost?  Where 
those  who  swindle  drunkards  in  making  change, 
those  who  sell  tickets  to  the  crowd  and  treat 
two-dollar  bills  as  dollars  and  with  bland, 
smiling  faces  claim  it  a  mistake?  Where  are 
the  apple  vendors  who  pack  the  fine  fruit  in  the 
barrel's  ends  and  put  the  blasted  wind-falls  in 
the  middle?  And  where  the  dealers  who  sell 
wood  and  place  the  knots  together,  face  to  face, 
and  thus  unduly  swell  the  pile?  Where  are  the 
men  who  sell  us  spurious  gems,  adding  an  oath 


FRAILTIES   OF   THE  JURY  17 

that  each  is  genuine?  Where  are  the  makers  of 
bogus  butter,  of  wine  that  never  knew  a  grape? 
Where  are  the  builders  who  will  cover  up  de- 
cayed and  shattered  stuff  with  lath  and  plaster 
and  sell  the  whole,  declaring  it  without  a  flaw? 
Where  are  those  who  bribe  conductors  to  get 
free  passage  on  the  railroad  trains  and  those  who 
hide  and  skulk  and  lie  to  beat  their  way  ?  Where 
the  conductors  that  "knock  down"  fares? 
Where  are  the  mining  stock  promoters?  Where 
are  the  slick  wooers  who  win  a  widow  to  pilfer 
her  estate  or  steal  the  heart  of  some  confiding 
girl  to  get  her  fortune  ?  Where  is  that  numerous 
army  of  the  vile,  gamblers  who  cheat  at  cards, 
book-makers  who  fix  the  races,  pickpockets,  shell- 
game  sharks,  thugs,  hold-up  men  and  thieves  of 
every  kind?  To  classify  them  is  an  endless 
task.  Are  not  these  rascals  still  at  large,  their 
names  upon  the  roll  of  voters?  How  can  the 
blinded  minion  of  the  law  avoid  their  names 
when  drawing  from  the  box?  Will  heaven  send 
a  loving  angel  down  to  guide  the  hand  of  him 
who  blinds  his  eyes  ?  ' '  The  gods  help  those  who 
help  themselves"  'tis  said,  and  he  who  blindly 
trusts  to  luck,  who  well  might  see,  can  have  no 
claims  on  heaven.  The  clerk  who  has  fair  luck 
will  get  a  just  proportion  of  the  vice  and  fraud 


18  FRAILTIES   OF   THE   JURY 

held  by  the  box  from  which  he   draws.     All 
lawyers  trained  in  jury  suits  know  every  jury 
has  such  membership  in  some  degree.    As  types 
that  I  have  often  seen  I  offer  these : 
Phil.  Floater. 

He  was  a  waif  of  fickle  fortune  and  poor  in 
everything  that  man  may  have.  His  form  was 
lean,  loose-jointed,  and  of  bloodless  hue,  his  face 
of  sneakish  and  frightened  aspect.  From  youth 
he  had  been  poorly  nourished,  he  ate  what  he 
could  get,  and  when,  and  where  it  could  be  got 
by  him,  he  took  the  scraps  of  what  was  left, 
after  the  strong  had  taken  what  they  wished. 
Whatever  was  exposed  to  theft  he  took  if  he 
could  get  it  without  peril.  He  was  the  youngest 
of  many  children,  all  reared  to  forage  where 
they  could,  picking  or  pilfering  other  peoples' 
crumbs.  Phil  followed  in  his  father's  foot-steps 
and  by  an  early  union  had  a  brood  of  children 
who  found  their  education  in  the  street.  He 
hung  around  saloons,  fed  on  free  lunches,  looked 
for  a  chance  to  beg  a  dime;  meanwhile  his  wife 
did  washing  to  keep  away  starvation  from  the 
home.  He  formed  acquaintance  with  small  poli- 
ticians, shadowed  their  foot-steps  and  stayed 
about  the  places  where  they  met.  This  way  he 
found  employment  in  odd  jobs  in  politics.    Here 


PRAILTIES   OF   THE  JURY         19 

he  was  placed  where  he  could  do  a  kind  of  dirty 
work.  They  so  manipulated  jury-drawing  that 
they  might  place  him  on  the  jury.  This  was  his 
harvest  field:  he  many  times  procured  small 
sums  to  hang  the  jury  or  cause  a  compromise. 
Such  as  he  are  often  found  among  the  riff-raff 
of  the  larger  cities,  and  in  some  smaller  ones. 
They  are  the  settlings  of  our  social  system,  who 
find  support  in  petty  pilfering,  and  any  kind  of 
service,  good  or  bad,  which  they  can  get  to  do. 
That  such  may  sit  as  jurors  and  pass  upon  the 
legal  rights  of  suitors,  reflects  upon  our  legis- 
lators and  shows  how  primitive  our  jury  system. 
I  now  give  one  who  started  higher  but  reached 
as  low  a  level : 

Jim  Sport. 
He  sprang  from  wealthy  parents  and  was  early 
taught  the  path  of  honor.  Good  books  were  his 
in  plenty  and  he  had  the  time  to  read  but  was 
too  indolent  to  struggle  up  the  hill  of  learning. 
Pleasure  held  out  her  arms.  He  flew  to  her  em- 
brace. The  soft,  sweet  dalliance  on  the  lower 
levels  he  found  more  suited  to  his  taste  than  any 
of  the  lofty  peaks  to  which  stern  virtue  pointed. 
Reared  on  the  fruits  of  others'  toil,  and  reaping 
where  he  had  not  sown,  justice  to  him  was  but  a 
name,  an  empty  name  contrived  to  conjure,  de- 


20  FKAILTIES   OF   THE  JURY 

signed  to  daz^ile  fools.  Though  full  the  father's 
purse,  when  it  descended  to  the  sou  it  soon  col- 
lapsed with  emptiness.  He  thought  it  was  ex- 
haustless,  like  an  ever-flowing  stream  fed  from 
unfailing  sources,  yet  found  at  last  'twas  but 
a  lake  shut  in  by  narrow  limits,  kept  by  the  dam 
his  father's  patient  thrift  had  raised,  and  when 
his  unthrift  broke  the  dam  away  it  headlong  ran 
to  ruin. 

Gambling,  the  universal  vice  that  curses  every 
nation  on  the  globe  and  teaches  fools  to  hope 
from  luck  and  chance  the  rich  rewards  which 
patient  toil  must  earn,  quite  early  caught  his 
fancy,  and  it  grew  apace  till  in  its  feverish  strife 
he  would  not  hesitate  to  stake  all  that  he  hoped 
in  life  upon  the  throwing  of  the  dice  or  turning 
of  a  card.  Often  he  stood  in  breathless  frenzy 
straining  his  eyes  to  watch  the  pace  of  running 
horses,  yelling  himself  to  hoarseness,  and  hoping 
the  one  on  which  his  bet  was  placed  would  fore- 
most reach  the  goal.  Then  cursing  his  ill-luck 
he  left  the  scene  and  supperless  long  pondered 
o'er  his  loss,  striving  to  understand  how  he  had 
been  undone.  Thus  did  he  often  lose,  yet  ever 
hoped  to  win  upon  another  bet.  Sometimes  he 
did.  He  cared  not  what  the  game,  the  time,  the 
place,  or  how  great  the  hazard.  He  ever  held  the 


FRAILTIES   OF   THE  JURY  21 

hope  that  by  some  liieky  chance,  some  trick  or 
underhand  device  that  he  could  succeed  and  get 
another's  wealth  without  a  just  return.  "Where 
he  had  planned  to  cheat  he  oft  was  cheated,  and 
knaves  much  shrewder  than  himself  wrought  his 
undoing.  Thus  did  he  circle  downward,  aided 
by  other  vices,  growing  worse  each  day  and 
poorer,  changing  his  gems  for  gewgaws,  his  man- 
sion for  a  single  room,  where,  clad  in  borrowed 
raiment,  he  strove  to  drive  away  the  wolves  of 
want  by  any  kind  of  baseness.  So  he  became  a 
jury  fixer  and  hawked  the  remnant  of  his  ragged 
honor  to  any  who  would  bid.  Sometimes  he  sat 
upon  the  jury,  wearing  the  livery  of  an  honest 
seeming,  appeared  to  listen  to  the  evidence,  as  if 
the  duty  he  assumed  weighed  heavily  upon  his 
conscience,  when  he  was  planning  or  had 
planned,  to  spend  the  bribe  his  perfidy  would 
gain.  He  was  the  finished  product  of  that  grow- 
ing vice  that  blasts  the  fairest  youths  in  all  our 
land,  fills  homes,  once  happy,  with  its  broken 
hearts,  turns  large  estates  into  a  stream  of  waste, 
which  ripples  for  a  time  in  merry  glee  but  turns 
to  rapids  and  cataracts  and  ends  at  last  in 
swamps  of  misery.  Those  who  embark  upon  its 
swiftly-flowing  tide  are  charmed  at  first  by  banks 
of  violets,  whose  odors  mixed  with  music  fill  the 


22  FRAILTIES   OF   THE  JURY 

air.  Softly  they  glide,  but  ever  downward  till 
at  last  too  near  the  rapids  they  find  too  late 
their  destiny  is  ruin  and  despair.  The  people 
who  surrender  to  this  vice  have  sealed  their  doom 
already,  they  have  set  the  date  for  their  own 
overthrow.  IManhood  and  womanhood  are  placed 
in  pawn  to  pay  for  gambler's  chips,  and  at  no 
distant  day  will  be  knocked  down  to  line  the 
velvet  nest  of  lust  and  crime.  The  victims  of 
this  vice  should  not  pollute  the  courts.  Their 
wrecked  and  wasted  lives  may  well  command 
our  pity  and  inspire  a  helping  hand,  but  only 
men  who  know  the  face  of  justice  and  have 
walked  that  path  of  toil  that  leads  to  honor,  who 
gladly  offer  for  what  they  get  its  worth  in  honest 
service — only  those  are  fit  to  sit  upon  a  jury. 

Here  is  a  juror  of  another  kind  and  yet  as 
bad : 

Walter  Whiteslave. 

He  was  the  withered  remnant  of  a  man  who 
all  his  life  had  been  a  corporation's  slave.  In 
infancy  he  was  its  errand  boy,  and  rising  slowly 
in  his  ma.ster's  service  advanced  from  post  to 
post,  and  when  the  weight  of  years  began  to 
bend  his  form,  wrinkle  his  flesh  and  spray  his 
head  with  frost,  he  held  a  place  which  many 
might  desire,  yet  he  was  always  subject  to  the 


FBAILTIE8   OF   THE  JURY  23 

will  of  one  above,  who  at  a  nod  could  sprawl 
him  helpless,  blacklist  him  on  the  roll  for  like 
employment,  and  forever  shut  the  door  to  future 
earnings  in  the  field  where  he  had  spent  his  life. 
And  so  he  toiled  in  fawning  attitude  and  dared 
not  question  those  who  gave  him  orders.    What 
told  to  do  he  did;  where  sent  to  go  he  went; 
yea,   more,   he  hung  upon  his  master's   looks, 
divined  his  thoughts  and  sprang  to  serve  him 
ere  the  thought  had  been  expressed  in  words. 
From  small  beginnings  the  corporation  which  he 
served  had  grown  and  spread  its  tentacles  till, 
like  the  mighty  banyan  tree,  its  roots  and  limbs 
extended  far,  the  tender  shoots  of  competition 
stifled,  and  had  no  rivals  except  those  thrifty 
monarchs  of  its  kind.     V/ith  these  it  stood  and 
intertwined  its  limbs  and  formed  a  mighty  for- 
est, shutting  out  the  light  above  and  making  all 
a  desert  in  its  shade.     This  corporation  was  his 
god,  its  rules  and  regulations  Holy  Writ,  its  will 
the  voice  of  law,  its  friends  his  friends,  its  foes 
his  foes,  and  all  alliances  which  it  had  formed 
he  counted  as  his  own.     As  such  he  sat  upon 
the  jury,  and  there  came  the  poor  and  weak 
pleading    for   justice    from   such    corporations, 
showing  wrongs  that  cried  to  heaven  for  quick 
redress.     Before  him  at  the  bar  employed  by 


24  FRAILTIES   OF   THE  JURY 

such  defendants  he  often  saw  a  minion  of  his 
master,  pride-bloated  in  its  service,  speakinp:  in 
tones  familiar  to  his  ears.  Sometimes  his  master 
and  the  party  sued  in  this  way  were  affinned. 
A  great  alliance  covering  half  the  globe,  offen- 
sive and  defensive,  had  been  formed,  and  called 
a  pleasant  name.  In  this  the  master  was  a  mem- 
ber also,  linked  with  it  this  party  to  the  suit  and 
they  with  many  others  acted  in  concert,  like  the 
several  parts  of  one  great  orchestra. 

Could  this  poor  wretch,  this  aged,  labor-crip- 
pled slave,  with  all  these  odds  against  him, 
knowing  that  a  breath  of  enmity  might  blow  him 
in  the  street  to  starve,  look  steadily  upon  the  face 
of  justice  and  with  unwavering  hand  sign  a 
large  verdict  against  his  master's  friend?  Yet 
he  had  sworn  to  be  impartial  and  his  high  duty 
to  his  state  and  country  and  the  plaintiff  he 
knew  full  well,  but  he,  who  all  his  life  had  crept 
in  meek  submission  to  an  iron  will,  which  cared 
not  whom  it  plundered,  could  not  now  stand  u}) 
and  show  rebellion. 

Laws  that  expect  good  service  from  this 
shackled  slave  were  born  in  ignorance  and 
should  be  changed.  These  truckling  servants 
should  never  sit  on  juries.  The  jury  box  should 
be  supplied  with  free  men,  who  know  no  master 


FRAILTIES   OF   TEE  JURY  25 

but    that    honest    conscience    that    keeps    them 
ever  in  the  path  of  duty. 

Look  at  another  picture  of  a  common  juror, 
called 

Thrifty  Loeb. 

Floater  was  weak  as  water  and  was  a  rascal 
because  he  could  not  help  it.  Sport  was  the  prey 
of  vice  and  this  tore  down  the  fence  of  virtue  and 
seared  his  conscience.  Whiteslave  was  but  a 
coward  weakling,  the  product  of  that  system 
which  honors  power  and  lets  the  worthy  starve. 
Now  turn  to  one  whose  staple  vice  was  mean- 
ness, who  might  have  lived  an  honest  and  an 
independent  life.  He  owned  a  little  farm  and 
from  its  tillage  found  relief  from  every  pressing 
want  and  every  day  might  have  become  more 
firm  in  soul  and  honor.  But  he  was  couched 
in  selfishness  as  closely  as  lies  the  unhatched 
nestling  in  the  egg,  and  through  its  shell  he 
never  cared  to  break.  He  had  no  large  ambi- 
tions, undertook  no  brilliant  scheme  of  crime, 
but  found  his  full  expression  in  acts  so  mean 
that  those  who  saw  them  felt  less  anger  than 
disgUvSt.  Such  small  positions  as  the  office  that 
supervises  roads,  or  manages  the  schools,  or 
waits  as  constable  upon  a  justice  court,  excited 
his  ambition.     They  offered  him  a  chance  to 


2n  FUMLTIES   OF   THE  JURY 

fleece  in  some  dishonest  way  the  scanty  fund 
a  township  treasury  had  gathered.  In  drawing 
stealings  from  so  thin  a  source  he  showed  a 
genius  that  if  linked  with  greater  force  might 
wrll  linve  made  a  money  magnate  of  him.  But 
with  his  timid  wing  his  flight  was  low,  yet  in 
the  region  where  he  worked  he  missed  no  oppor- 
tunity for  selfish  gain  and  followed  every  lead 
which  promised  it.  Often  he  got  upon  the  jury 
and  there  he  sought  to  trade  his  verdict  for  a 
little  pelf.  His  hand  was  always  out,  his  eyes 
were  open  wide,  his  sleepless  vigil  ever  was  to 
gather  gold  or  favor  by  his  verdict.  His  ears 
were  deaf  to  pleas  for  justice,  his  heart  was  cold 
to  others'  wrongs,  and  that  important  organ  of 
the  brain  which  we  call  conscience  was  but  a 
wasted  membrane  so  steeped  in  soporific  selfish- 
ness that  none  could  ever  wake  it. 

How  to  exclude  such  scoundrels  from  the  jury 
should  be  discovered  by  the  legislature.  The  task 
is  not  prodigious.  Men  of  well-proved  worth 
who  in  the  public  eye  have  shown  their  fitness 
for  exalted  tru.st  are  not  so  scarce  that  we  must 
fill  our  Courts  with  such  vile  trash. 


CHAPTER  III. 


Attention. 


A  jury  box  is  not  a  place  for  sleep,  but  many- 
try  it  and  succeed  quite  well;  others  sit  half 
asleep,  in  mental  aberration.  Some  claim  that 
things  told  them  in  slumber  are  afterwards  re- 
called unconsciously  in  making  up  their  judg- 
ment. This  I  do  not  quite  believe.  The  camera 
takes  no  photograph  without  a  plate  made  sen- 
sitive. This  registers  the  image.  And  so  the 
human  mind  receives  no  image  from  objects 
offered  to  the  eye  or  ear  unless  attention  is  se- 
cured. Some  conscious  notice  must  be  taken  or 
the  event,  like  all  the  myriads  everywhere  oc- 
curring, will  pass  without  effect  and  leave  no 
record  in  the  mind.  Some  acts  compel  this  no- 
tice by  their  force.  A  blow,  a  lightning  flash,  a 
shout  or  scream,  may  draw  attention  even  against 
the  will;  but  most  events  depend  upon  desire 
to  furnish  them  attention  and  this  soon  wearies 
and  is  lost,  and  no  record  of  events  is  made  un- 
til attention  is  again  secured.  The  jury  must 
desire  to  hear  the  evidence  if  they  remember  it. 
27 


28  FRAILTIES   OF   THE  JURY 

They  must  give  close  attention  to  every  word 
and  boar  a  mental  strain  from  first  to  last.  Can 
men  untrained  at  listening  do  this  task?  Will 
they  be  likely  to  attempt  so  great  a  strain  ?  Men 
of  wide  learning  and  ripe  experience  are  quite 
exhausted  by  an  hour  of  listening.  A  lecture, 
concert,  poem,  drama,  sermon,  story,  speech,  or 
song  running  beyond  an  hour  without  a  rest  is 
likely  to  be  partly  lost  on  worn-out  ears.  Lec- 
tures and  sermons  mostly  are  confined  to  less 
than  sixty  minutes.  Dramas  are  divided  into 
acts,  each  with  an  interval  of  rest  between.  Why 
then  should  jurors  be  required  to  rivet  their 
attention  for  several  hours  without  an  inter- 
mission. They  do  not  and  can  not  perform  the 
task.  Behold  them  wriggle  in  their  uneasy  seats, 
cross  and  uncross  their  legs,  look  at  the  ceiling 
or  out  on  the  street,  glance  slyly  at  a  paper  or 
the  clock.  Observe  their  wandering  gaze  and 
note  the  look  of  interest  come  and  go  as  intermit- 
tently they  think  of  their  affairs,  then  of  the 
case.  The  rosy  face  of  that  young  farmer  lad  now 
wears  a  pleasant  smile.  Has  he  untied  a  knotty 
problem  in  the  case  ?  Not  so ;  his  mind  was  with 
the  girls  down  in  the  orchard  beneath  the  balmy 
blossoms  and  the  glowing  mogn.  'Tis  cruelty 
to  terminate  his  dream  and  make  him  listen  to 


FRAILTIES   OF   THE  JURY  29 

the  evidence.  Note  on  that  aged  merchant's 
care-worn  face  the  rising  frown.  Has  he  beheld 
some  act  or  heard  some  word  that  causes  him  to 
fear  a  witness  has  falsely  sworn?  Not  so;  he's 
thinking  of  his  store.  His  curdled  brow  is  in- 
dex of  the  fear  he  feels  that  bills  maturing 
while  he  is  on  the  jury  may  find  no  cash  to  meet 
them.  That  city  stripling  who  looks  so  pleased 
is  planning  for  a  dance  to-night  or  party  at  the 
theater.  That  fat  old  man  now  quite  asleep  is 
dreaming  it  is  five  o'clock  and  he's  at  home. 
Others  are  not  asleep  and  yet  contrive  to  while 
away  the  weary  hours  in  which  a  witness  cons 
the  items  of  a  long  account,  by  numbering  o'er 
the  buttons  on  his  coat,  the  books  upon  a  table, 
or  noting  the  peculiar  beard  or  garb  of  some- 
one looking  on.  How  to  attract  attention  is  a 
puzzle  that  advertisers  ever  find  before  them. 
Preachers  and  actors  and  all  who  court  the  pub- 
lic eye  are  ever  on  the  rack  to  solve  it.  Men 
will  not  look  or  listen  long  unless  they  find 
amusement  in  so  doing  or  feel  compelled  to  do 
so  by  a  sense  of  duty.  Great  strength  must  come 
from  training  for  the  purpose  for  which  that 
strength  is  used,  and  power  to  listen  comes  from 
often  listening  long  and  well.     'Tis  not  a  bounty 


30         FRAILTIES   OF   THE  JURY 

from  the  hand  of  Nature,  but  the  reward  of 
patient  toil. 

To  sliow  the  laek  of  skill  in  this  regard  I  peu 

two  sketches: 

Calvin  Curiosity. 

He  was  born  with  open  eyes  and  came  to  see 
the  world ;  his  ears  were  large  and  keen  to  hear ; 
his  fingers  long  and  greatly  he  enjoyed  their 
use;  his  mouth  was  large  and  filled  with  ruddy 
tissues  and  when  he  saw  a  tempting  viand  it 
watered  with  profusion.  His  health  was  rugged 
and  he  was  much  alive  on  every  plane.  All 
things  of  physical  or  mental  nature,  or  those 
emotions  which  pertain  to  spirit,  and  every 
dream  and  vision  that  were  drawn  upon  imagin- 
ation's walls  he  longed  to  grasp.  All  that 
a  man  might  wish  he  sought  with  strong  desire, 
his  heart  high-beating  longed  for  every  throb  of 
pleasure  in  the  world.  He  stood  upon  the  lofti- 
est peaks  his  means  could  reach;  he  saw  the 
smallest  microbe  that  his  glass  could  bring  to 
view;  he  drank  all  waters  and  tasted  every  vint- 
age that  he  could  procure.  Rare  beers,  import- 
ed liquors,  cordials  and  mixtures,  light  and 
heavj',  he  eagerly  imbibed,  not  that  he  wished 
to  drink  but  only  for  the  knowledge  gained 
thereby.     All  foods  that  man  had  ever  eaten, 


FRAILTIES   OF   THE  JURY  31 

fowls,  animals  and  insects,  worms  and  beetles, 
he  made  familiar,  and  every  fruit,  root,  vege- 
table or  weed  that  pleases  any  appetite  he  made 
acquainted  with  his  palate.  In  his  own  species, 
too,  he  took  delight,  wanted  to  meet  all  men  and 
women,  youths  and  infants,  white,  black,  yellow, 
red  or  brown,  of  every  nation,  land  and  tongue. 
And  everything  that  man  has  made  of  art  or 
ornament  he  wished  to  view.  In  this  pursuit 
he  would  have  toured  in  every  land  did  not  his 
meager  purse  prevent.  In  the  city  where  he 
lived  he  travelled  much ;  center  and  suburbs  and 
all  points  between  he  eagerly  explored.  Once 
only  did  he  use  a  path  if  he  could  find  another; 
moved  frequently  from  flat  to  house  and  house 
to  boarding-place,  changed  restaurants  and  of- 
fices and  hardly  had  he  made  one  friend  before 
he  left  him  for  another.  The  gentle  sex  of  every 
grade  gave  him  delight;  the  grave,  the  gay,  the 
warm,  the  cold,  the  stolid,  the  intense,  white, 
dark,  or  rosy -tinted,  all  caused  him  much  amuse- 
ment for  a  space.  He  flitted  rapidly  from  flow- 
er to  flower  and  opening  bud,  nor  dallied  long 
enough  to  make  a  deep  impression.  He  sought 
for  freaks  in  men  and  women  and  curios  every- 
where. Music  was  his  delight,  but  when  a  song 
was  learned  he  dropped  it  from  his  mind.     The 


32         FRAILTIES   OF   THE  JURY 

best  performers  rarely  charmed  more  than  once. 
And  many  books  he  read  or  scanned.  If  filled 
with  startling  stories  or  pictures  drawn  in  glit- 
tering lines,  grotesque,  or  quite  uncommon,  these 
he  devoured ;  if  they  were  merely  plain  but  clear 
and  accurate  in  line  and  precept  he  threw  them 
soon  aside,  abhorring  every  form  of  common- 
place, lie  gave  attention  to  relid^us  faiths  of 
his  and  other  lands,  and  in  every  creed  how- 
ever strange  and  difficult  he  took  deep  interest 
until  he  knew  its  salient  points,  then  gave  it 
thought  no  more.  The  pulpit  and  the  rostrum 
had  for  him  attraction  and  yet  he  seldom  heard 
the  same  man  twice,  and  if  at  first  the  speaker 
dwelt  on  common  things  he  left  straightway  and 
sought  another  place.  And  so  it  was  in  all  his 
other  quests.  He  deemed  the  world  a  museum 
to  delight  his  senses,  and  when  his  rising  wants 
were  satisfied  he  followed  his  first  impulse  which 
advised  a  change.  This  man  of  eyes  and  ears 
and  active  observations  w'as  often  seen  upon  a 
jury.  If  the  witness'  tale  was  new  and  told 
with  fervor  or  dramatic  power,  he  followed  it 
awhile ;  if  commonplace,  or  dull,  or  poorly  told, 
his  mind  recoiled  and  wandered  to  more  thrill- 
ing subjects,  and  thus  in  general  was  he  the 
worst  of  jurors.     His  lack  of  patience,  evident 


FRAILTIES   OF   THE  JURY  33 

to  all,  caused  lawyers  miicli  distress  and  parties 
thought  that  he  was  set  against  them.  He  only- 
saw  the  tops  of  facts.  His  view  was  like  the 
skimming  swallow's  when  flying  o'er  a  city, 
who  sees  a  maze  of  roofs  and  steeples  but  has 
no  vision  of  the  life  within. 

Take  an  example  of  another  sort: 
Robert  Recluse 
was  of  a  different  mould.  He,  too,  had  eyes, 
but  they  were  rarely  used  except  upon  familiar 
things.  The  common  sounds  which  he  had 
often  heard  gave  him  the  most  delight.  He  sel- 
dom wandered  from  the  beaten  path  o'er  which 
his  feet  from  infancy  had  trod.  He  fastened 
to  the  friend  v/ho  had  proved  true  and  never 
thought  of  change.  The  first  love  of  his  youth 
he  m^ade  his  bride  and  wished  to  live  and  die 
with  her,  and  by  her  side  be  buried,  hoping 
that  they  might  share  immortal  life  together. 
In  early  manhood  he  had  learned  a  trade  under 
his  father's  guidance  and  this  he  practiced  as 
his  father  had.  He  added  no  improvements  and 
resisted  all  proposed.  The  old  was  good  enough 
for  him.  His  days  were  filled  with  steady  toil, 
each  day  like  every  other,  and  the  lack  of  change 
caused  no  discomfort.  The  few  things  that  he 
ate  and  drank  were  never  changed,  but  in  the 


34  FRAILTIES   OF   THE  JURY 

accustomed  order  found  his  palate  ever  ready 
to  enjoy.  He  bad  about  a  dozen  common 
thoughts  relating  to  the  soul,  the  future  state 
and  social  matters,  and  these  he  oft  repeated 
if  he  were  forced  to  talk  by  some  occasion,  but 
took  the  most  delight  in  silence  and  the  peace 
which  comes  from  shutting  out  the  world.  He  - 
bent  his  body  to  his  daily  task  and  there  he 
kept  his  mind,  resisting  all  attempts  to  lure  it 
to  strange  fields  and  often  when  invited  by 
words  of  others  he  ventured  no  reply  and  soon 
'twas  clear  he  had  not  listened,  but  was  think- 
ing of  his  work.  Within  the  narrow  sphere 
in  which  his  life  was  fixed  he  was  content  to 
know  but  little.  Outside  he  had  no  knowledge. 
Books  to  him  were  blanks,  the  world  with  all  its 
wealth  of  wonders  to  him  was  as  unknown  as 
were  the  twinkling  orbs  which  from  the  shining 
garments  of  the  night  lighted  his  pathway  on 
ills  journey  home.  He  had  no  civic  pride.  He 
sued  no  one  and  none  sued  him.  He  asked  no 
favor  of  the  government  but  to  be  let  alone.  He 
felt  a  great  disgust  when  he  was  summoned  on 
a  jury.  He  had  no  interest  in  the  suits,  was  not 
familiar  with  the  language  used,  disliked  the 
conduct  of  the  court,  the  advocates  and  suitors 
and  his  fellow  jurors,  sat  under  protest,  and  to 


FRAILTIES   OF  TEE  JURY         35 

what  was  said  and  done  gave  little  heed  but  got 
away  as  quickly  as  he  could.  He  was  au  igno- 
ramus of  the  common  type,  and  yet  in  one  re- 
spect was  wiser  than  the  men  who  frame  our 
statutes.  He  knew  he  was  not  suited  to  the  task 
thus  forced  on  him  by  law. 

Many  like  examples  might  be  cited.  These 
are  sufficient  to  show  the  need  of  men  for  jury 
service  trained  to  listen,  not  to  amuse  themselves 
but  as  a  duty  which  the  law  has  laid  upon  them. 


CHAPTER  IV. 


Perception. 


Attention  is  the  photographic  plate.  Percep- 
tion is  the  image  formed  thereon.  Unless  the 
plate  is  well  prepared  the  image  will  be  blurred, 
the  words  be  heard  and  yet  not  understood,  or 
the  motive  mi.ssed  which  brought  them  into  be- 
ing. Thus,  to  perceive  requires  a  skill  which 
only  comes  to  minds  well  trained  for  such  a 
task. 

In  every  suit  is  often  used  a  language  strange 
to  those  untutored.  The  law  has  ever  had  a 
language  of  its  own.  Its  words  are  names  of 
battlefields  that  fly  an  unfamiliar  flag  to  eyes 
untrained.  To  those  instructed  in  the  law,  these 
words  have  meanings  accurate,  precise  and  easy 
for  them  to  understand. 

A  barber  may  po.ssess  the  greatest  skill  and 
mow  the  stubble  from  the  roughest  chin  with 
easy  grace,  know  to  a  hair  just  what  to  cut  and 
what  to  leave  in  order  that  his  patron's  head 
may  look  the  best,  and  he  may  know  the  lotion 
that  will  coax  the  straggling  fuzz  upon  the 
86 


FRAILTIES   OF   THE  JURY  37 

glassy  surface  of  the  scalp,  persuading  it  to 
grow  like  grass  in  June,  may  draw  his  razor 
with  an  ease  and  skill  matching  the  master  of 
the  violin  who  glides  caressingly  his  dancing  bow 
across  the  singing  strings.  Ilis  comb  and  clip- 
pers he  may  handle  well  and  know  the  use  of 
every  barber's  tool ;  may  rub  and  shampoo,  knead 
and  wipe  with  such  rare  skill  and  gentleness 
that  every  frowsy,  unwashed  customer  who 
passes  through  his  hands  may  issue  forth  a 
perfumed  pink  of  beauty  and  delight,  and  yet 
not  understand  a  fee-tail  or  a  springing  use 
after  the  judge  has  told  him  what  they  are  in 
legal  phrase. 

A  farmer  may  reach  the  top  in  tilling  soil, 
may  know  each  baneful  bug,  malicious  microbe 
and  devouring.  Avorm,  may  recognize  each  pest 
that  blights  and  mildews  growing  crops,  and 
know  the  means  to  nip  them  in  the  Qg^,  may 
knov/  all  kinds  of  cattle,  horses,  hogs  and  sheep 
and  fov>d  that  lay  or  breed  with  profit,  may 
kno\y  the  moon  and  season  when  to  sow  and 
reap,  and  how  to  fertilize  and  trim,  and  when 
to  sell  with  largest  gains.  He,  farmer's  work 
may  do  with  rarest  skill.  He  may  have  trained 
his  body  for  such  tasks  until  his  motions  seem 
a  sleight  of  hand  that  all  may  envy,  and  yet  be 


o< 


38  FRAILTIES   OF   THE  JURY 

ill  the  densest  fopr  \\lien  listening:  to  the  learned 
judire  expound  on  proof  beyond  a  reasonable 
doubt  and  proof  to  a  moral  certainty  and  proof 
by  preponderating  evidence.  His  brain  well 
filled  with  ag:rieultural  lore,  lost  in  bewilder- 
ment, may  see  a  mass  of  many  images  arise 
when  he  hears  the  court  descant  upon  the  differ- 
ence that  exists  between  a  general  reputation 
for  a  general  moral  character  and  such  repute 
for  truth  or  honesty. 

The  master  builder  may  have  the  mental  grasp 
to  image  in  his  mind  a  mighty  temple  and  body 
forth  his  vision  in  a  form  where  every  part 
',\il]  fit  as  neatly  as  the  human  eye.  He  may 
have  such  skill  to  manage  men  that  multitudes 
obey  him  with  delight,  and  move  like  armies 
stirred  by  martial  music  led  by  a  great  com- 
mander; may  have  a  ready  use  of  building  art, 
and  all  the  skill  which  countless  ages  have  sent 
down  the  tide  of  time,  and  yet  be  but  a  child 
groping  in  dark  when  listening  to  the  judge  ex- 
plain the  law  of  negligence,  in  forty  long  in- 
structions setting  forth  the  fine  distinctions  spun 
in  threads  of  gossamer,  partitions  of  the  thin- 
nest fibre  dividing  causes  immediate  and  remote, 
contributing  to  cause  or  causing  consequential 
damages.     All  these  are  plain  as  noon-day  to 


FRAILTIES   OF   THE  JURY  39 

the  well-versed  lawyer,  and  easy  as  the  rhymes 
of  ''Mother  Goose,"  yet  they  invite  the  great 
mechanic  to  a  realm  where  all  is  slippery  foot- 
ing for  his  untrained  feet,  and  he  may  wander 
into  many  errors  unawares. 

All  this  applies  with  equal  force  to  every 
adept  of  the  manual  arts,  not  trained  in  legal 
phrases,  and  shows  the  folly  of  the  law  that 
takes  great  captains  from  their  chosen  fields  to 
make  poor  jurors  of  them.  If  such  as  these 
are  failures  on  the  jury  for  lack  of  legal  knowl- 
edge, what  of  the  common  mass  that  are  thus 
called  to  sit?  Their  minds  are  merely  appetites; 
they  know  but  little  language,  and  that  so 
poorly  that  they  may  stumble  trying  to  under- 
stand the  plainest  words.  Some  like  the  Esqui- 
maux could  not  count  ten  without  great  strain, 
and  can  not  grasp  a  dozen  thoughts  and  hold 
them  clear.  The  court's  instructions  and  the 
lawyer's  talk  are  nebulous  to  them,  the  long- 
drawn  trial  seems  a  milky  way  that  paints  its 
path  of  light  across  the  sky  yet  leaves  the  earth 
in  darkness.  Jurors  may  understand  the  words 
and  get  the  thought  intended  by  a  witness  and 
yet  be  much  deceived  because  they  lack  the  pow- 
er to  read  his  hidden  motive.  Some  have  the 
minds  of  children  and  take  in  all  tales  well  told 


40  FRAILTIES   OF   I'lIE   JURY 

;nul  when  the  stories  cross  are  in  a  wilderness 
\\illi  neitlier  siiiide  nor  compass.  Snch  was  the 
simple  mind  of 

Enoch  Good. 
His  home  was  near  a  stream  that  gently  rip- 
pled by  and  never  failed.  He  lived  upon  his 
father's  farm,  its  fertile  soil  gave  always  snre 
reward,  its  bubbling  springs  gushed  forth  in 
ever  constant  streams.  The  seasons  came  at 
their  accustomed  time  and  brought  the  birds 
and  flowers  that  he  had  yearly  seen,  since  first 
his  infant  feet  had  toddled  on  the  mead.  The 
bees  had  brought  their  honey  to  the  hives,  from 
year  to  year,  the  orchard  its  fruitful  yield  when 
Autunui  came,  and  every  plant  and  tree  and 
clinging  vine  kept  faith  with  him  in  blossom  and 
in  fruit.  His  parents  and  his  friends  were 
ever  kind  and  never  had  deceived  him.  Be- 
yond the  gentle  rising  hills  that  hedged  about 
the  cottage  where  he  lived  he  never  cared  to 
roam,  the  village  where  he  dwelt  was  all  the 
world  he  wished  to  know.  When  he  became  a 
man  the  playmate  of  his  youth  he  made  his 
bride;  she  was  the  first  to  win  his  love — a 
cousin  on  his  mother's  side — and  kept  it  and 
never  proved  untrue.  He  voted  the  ticket  that 
his  father  voted  and  read  the  paper  that  his 


FRAILTIES   OF   THE  JUBY  41 

father  read,  at  the  same  church  attended,  swal- 
lowed the  sermons  as  young  birds  their  food. 
His  neighbors  all  seemed  true,  and  he  believed 
them  so.  He  sometimes  heard  of  falsehood  as 
a  far-off  thing  among  the  most  depraved,  but 
rarely  found  it  in  his  little  world. 

This  man  was  drawn  upon  a  jury,  and  was 
asked  to  try  a  case  where  suit  was  brought  upon 
a  note.  The  man  thus  sued  denied  he  signed 
the  note;  two  persons  swore  they  saw  him  sign. 
He  then  brought  forward  four  who  took  the 
stand  and  testified  they  saw  him  pay  the  note 
in  full. 

How  could  this  guileless,  simple-minded  man 
to  whom  such  falsehood  was  unknown  unravel 
such  a  tangled  skein  and  draw  the  thread  of 
truth?  Lawsuits  are  born  of  falsehood.  The 
truth  is  rarely  told  by  all  the  parties,  some- 
times both  deal  in  lies.  They  come  to  court 
with  their  Avell-varnished  tales,  trained  and 
much  practiced,  and  with  a  skill  that  would 
adorn  a  better  cause  they  act  the  part  of  mar- 
tyrs to  the  truth.  The  untrained,  inexperienced 
novice  who  does  not  know  the  color  of  a  lie  can 
find  no  explanation  to  the  puzzle,  and  in  his 
efforts  will  often  push  aside  the  solid  gold  of 
truth  and  choose  the  plated  ware.    Fraud  comes 


42  FRAILTIES   OF   THE  JURY 

to  court  dressed  like  the  truth  and  wears  her 
mask  so  well  that  the  unpracticed  juror  believes 
her  guileless.  The  numerous  holes  which  pene- 
trate her  mask  are  smaller  than  his  eyes  can  see ; 
the  places  where  her  garments  fail  to  fit  escape 
his  notice.  The  times  she  over-plays  the  part 
of  innocence  by  vaunting  it  too  nnieh  he  does 
not  note.  All  these  indices  to  the  guile  she  hides 
arc  patent  to  the  well-trained  judge.  Before 
his  eyes  for  m.any  years  have  passed  the  true 
and  false  making  their  claims  for  his  redress; 
he  knows  the  gait  of  each,  the  ring  of  truth 
and  falsehood  ;  and  as  the  case  proceeds  shrewdly 
divines  the  purpose  held  by  each  party  to  the 
suit,  the  feeling  of  each  witness,  and  remembers 
all  when  making  up  his  judgment. 

Such  men  as  Enoch  Good,  who  have  no  knowl- 
edge of  the  guile  that  enters  in  such  suits,  are 
no  more  fitted  to  ferret  out  the  facts  from  such 
a  mass  of  lies  than  are  the  lap-dogs  fondled  at 
the  hearth  suited  for  hunting  foxes  in  the 
tangled  woods. 


CHAPTER  V. 


Memory. 


An  accurate  image  may  be  lost  when  memory 
is  bad.  The  imprint  which  a  fact  has  made 
upon  the  mind  may  be  so  faint  that  what  occurs 
thereafter  wipes  it  out.  A  judge  takes  notes 
of  all  the  evidence  to  aid  his  memory  and  some- 
times has  a  transcript  furnished  to  him. 
Trained  even  as  he  is  his  memory  often  fails 
and  mnch  he  needs  this  aid.  The  jury  have 
no  training  and  no  means  of  taking  notes,  nor 
are  they  furnished  any  transcript  but  are  sup- 
posed to  carry  all  the  evidence  in  mind,  the 
rulings  of  the  judge  thereon  and  how  each 
witness  did  appear  when  on  the  stand.  Some 
trials  last  for  many  weeks  and  scores  of  wit- 
nesses give  evidence.  All  this  the  jury  must 
remember  till  they  reach  a  verdict,  or  its  effect 
is  lost.  Have  jurors  such  colossal  minds  that 
they  can  grasp  this  vast  array  of  facts  and 
hold  them  till  they  reach  the  jury-room?  They 
are  not  thus  equipped.  Plagued  as  they  are 
by  unfamiliar  words,  stage  frightened  by  their 

43 


44  FRAILTIES   OF   THE   JURY 

.queer  position  and  filled  with  worry  of  their 
own  affairs  now  needing  their  return,  they  are 
confused  and  get  but  faint  impres.sions  of  the 
matters  taking  place,  and  have  at  best  but  hazy 
notions  of  what  has  occurred.  Some  of  the  lead- 
ing points  they  may  recall  but  all  between  is 
vagueness  or  a  blank.  Lawyers  who  know  the 
witness  well,  have  heard  him  tell  his  story  and 
written  down  his  tale,  often  can  not  recall  his 
evidence  when  needed  in  their  argument.  Then 
how  absurd  to  think  a  jury  with  so  poor  a 
chance  could  thus  excel  the  skillful  advo- 
cate. Few  persons  realize  how  little  they  recall 
of  that  which  has  occurred  the  day  before.  Some 
hear  a  lecture  and  forget  the  subject,  a  sermon 
and  can  not  recall  the  text,  or  read  a  book  yet 
can  not  quote  a  line  without  substantial  error. 
The  jury  are  but  average  men  with  common 
faults  that  mar  us  all  and  few  can  realize  how 
little  they  recall  about  the  cause  when  they  have 
reached  the  jury-room.  That  which  they  heard 
the  last  will  have  most  force  and  statements 
made  by  fellow  jurors  assuming  to  recollect  what 
they  do  not  will  have  great  weight. 

Bad  memories  are  of  many  kinds.  Some  may 
remember  names  and  yet  not  faces,  others  recall 
the  face  but  not  the  name.     Some  may  bring 


FBAILTIES   OF   THE  JURY  45 

back  the  place  with  ease,  who  can  not  tell  the 
things  that  there  occurred.  Dates  sometimes 
are  impressed  upon  the  brain  of  those  who  have 
but  faint  impressions  of  other  subjects,  while 
many  who  can  not  remember  dates  are  good 
recalling  other  things. 

Between  the  best  and  worst  of  memories  are 
many  grades,  but  few,  indeed,  there  are  who 
can  remember  all  things  well.  We  can  recall 
v/ith  greatest  ease  the  things  we  most  desired 
to  hear  and  fully  understood,  but  things  we 
did  not  wish  to  listen  to  and  had  no  clear  percep- 
tion of  we  rarely  can  recall.  The  poorest  mem- 
ory m^ay  be  trained  to  give  good  service,  and 
the  best  one  may  by  lack  of  care  become  the 
worst.  Bad  specimens  appear  on  every  jury, 
and  here  are  two  not  of  the  worst : 
Benjamin  Bookworm. 

Ilis  chief  delight  was  books.  From  infancy 
the  lettered  page  was  more  to  him  than  all 
beside.  This  appetite  increased  with  years,  un- 
til he  hungered  to  devour  all  forms  of  reading 
matter  that  the  world  contained.  Nor  vv^as  he 
careful  what  the  matter  was,  so  that  he  found 
it  printed,  except  perhaps  the  older  and  more 
fanciful  the  tale  the  greater  did  he  relish  it. 
Statistics  and  chronologies,     records  of  births 


46  Fh'AIl/rU'JS   OF    THE   JUUY 

and  deaths  of  ancient  kings,  and  genealogifis 
from  tombs  deciphered,  the  dates  of  battles 
fought  so  long  ago  that  naught  but  records  of 
the  dates  and  names  remained  upon  the  moul- 
dering monuments,  these  filled  his  soul  with  ec- 
stacy  when  i-ead  in  musty  books,  but  whether 
his  iici'j;lil)()rs  lived  or  died  he  did  not  care  to 
hear  but  thought  the  time  was  wasted  which 
was  spent  in  hearing  of  the  joys  or  woes  of  men 
h«'  knew.  ]']ven  these  if  found  in  pi'int  he  took 
sonic  interest  in,  and  yet  had  not  the  flavor  of 
delight  which  came  from  subjects  more  remote 
when  found  between  the  lids  of  ancient  books. 
When  thus  embalmed  events  became  prodigious, 
and  the  most  commonplace  affair  when  long  cor- 
roded with  the  ru.st  of  time  became  a  precious 
mor-sel.  The  silly  doings  of  a  petty  prince,  the 
gibberings  of  a  naked  savage,  the  antics  of  a 
bug,  an  ant,  or  worm,  bivalve,  or  microbe,  when 
told  in  piiiitcd  htters,  had  more  of  interest  to 
liim  than  did  the  sight  of  many  thousand  men 
moving  in  solid  phalanx  to  fence  the  country 
of  his  birth  against  invasion.  For  many  years 
he  lived  so  near  a  mighty  waterfall,  that  he 
could  heai"  its  I'oar,  yet  went  not  out  to  see  it, 
meanwhile  he  conned  with  eagerness  prolix  ac- 
counts of  many  distant  cataracts,  such  as  the 


FRAILTIES   OF   THE  JURY  47 

Nile,  or  Wirmepeg.  He  dug  for  things  that 
time  had  buried  deep,  delved  for  the  roots  of 
long  forgotten  tongues  and  felt  the  greatest  glee 
when  he  could  I'cad  how  sand  or  sandstones  had 
contained  the  crumbling  bones  or  fossilized  re- 
mains of  creatures  now  extinct. 

His  form  was  frail  and  poorly  nourished ;  his 
pale  blue  eyes  were  overhung  with  shaggy 
brows;  his  head  topped  like  a  mountain  peak 
above  the  timber  line,  where  trees  and  furze 
and  mountain  grass  yielded  at  last  to  barren- 
ness. His  long  nose  ended  in  a  downward  turn. 
His  chin  was  thin  and  pointed.  His  eyes  worn 
out  by  poring  over  books  were  almost  blind  and 
only  by  strong  ghisses  could  be  iiiade  to  see.  He 
learned  to  skim  from  page  to  page  and  book  to 
book  v/ith  rapid  spe(!d,  not  seeking  to  retain  for 
fuliin;  us(!  the  matter  that  he  read.  The  images 
thus  loiined  were  soon  erased  by  many  that  dis- 
plac(!d  them,  and  these  in  turn  were  blotted  out 
by  others  that  succeeded.  His  memory  thus  be- 
came so  bad  that  he  could  scarce  recall  the  num- 
l)er  of  his  home  or  tell  his  children's  names, 
and  more  than  once  he  did  forget  his  own,  but 
this  was  when  exhausted,  and  his  mind  dis- 
traught by  weariness.  He  had  repute  for  learn- 
ing, and  when  not  worn  out  by  most  prodigious 


48  FUAILTLES   OF   THE   JURY 

reading  he  could  recall  the  births  and  deaths 
of  many  ancient  kings  and  salient  facts  upon  a 
host  of  subjects,  and  what  he  did  recall  was  quite 
exact  and  not  the  product  of  his  erring  fancy. 
When  he  was  called  to  jury  duty  he  was  much 
disgusted.  He  hated  courts  that  forced  him  from 
his  books  and  made  him  hear  of  things  that  he 
disliked.  His  mind  recoiled  from  these  and 
turned  to  other  things,  preferring  foreign  lore 
to  native  facts.  The  intervals  between  the  sit- 
tings of  the  court  he  spent  in  efforts  to  regain 
the  time  thus  taken  from  his  books,  and  when 
at  last  the  case  was  tried,  the  arguments  and 
court  instructions  heard,  like  some  poor  cap- 
tive to  a  dungeon  scourged  he  went  with  fel- 
low jurors  to  the  jury-room.  When  there  he 
strove  the  stories  to  recall  that  had  been  told 
him  from  the  witness  stand,  then  found  his 
mind  was  but  a  blank,  except  on  some  most  strik- 
ing points,  and  this  he  had  to  fill  with  what  his 
fellow  jurors  claimed  to  recollect. 

Lucius  Quintius  Curtius  Loquacity. 
His  head  was  large,  his  hair  was  coarse  and 
plentiful,  and  black  as  jet,  his  skin  was  dark 
and  leathery,  his  eyes  wide  open  and  of  dark- 
est hue,  his  neck  was  thick  and  short  and  stiffly 


FRAILTIES   OF   THE  JURY  49 

held  his  square,  strong  jaws  and  head  upon  his 
massive  shoulders,  his  beard  was  bristly  and 
stood  about  his  large,  coarse  mouth  and  heavy 
teeth  like  hazel  stubble  round  a  rocky  chasm. 

He  was  a  fountain  of  vociferation  that  drew 
its  water  from  an  inner  source  and  promised 
great  abundance.  Few  were  the  books  or  papers 
that  he  read,  and  these  he  read  in  haste,  and 
always  was  he  bored  when  others  read  what  they 
admired  to  him.  Silence  he  much  despised,  and 
more  than  that  disliked  in  silence  to  remain 
while  others  talked.  He  wished  no  gift  of  in- 
formation or  advice.  In  this  he  most  desired 
to  be  the  giver  and  he  made  such  gifts  with  reck- 
less prodigality  even  to  those  who  least  desired 
them.  His  lungs  were  large  and  strong,  and  well 
supplied  an  active  throat  and  tongue  with  air 
to  keep  them  moving.  These  he  could  start  and 
then  leave  or  go  to  sleep,  so  far  as  mental  effort 
was  concerned,  and  the}^  would  run  for  hours 
with  greatest  speed  and  never  drop  a  stitch  or 
show  the  least  respect  for  any  who  would  in- 
terrupt. The  product  was  a  mass  of  stuff,  stale 
and  most  commonplace,  chop  logic  and  wretched 
sophistry  mixed  with  false  statements  that  bub- 
bled upward  from  within  like  emanations  from 
a  putrid  pool.    His  rich  imagination  was  a  bank 


50  FRAILTIES   OF   THE  JURY 

that  never  closed  its  doors  or  had  occasion  to 
reject  an  overdraft.  On  this  he  scattered  checks 
like  flying  leaves  when  Autumn's  gusts  are 
whistling  through  the  woods.  Sometimes  he  hit 
upon  a  fact,  but  this  he  painted  with  a  hue  so 
strange  that  it  misled  instead  of  guided.  All 
things  which  effervesced  so  freely  were  uttered 
with  such  force  that  calling  them  in  question 
seemed  like  a  challenge  to  a  mortal  combat. 
Few  cared  to  contradict  his  furious  words  or 
try  to  modify  the  stand  he  took. 

This  man  was  often  foreman  of  the  jury,  and 
there  his  brutal  presence  had  great  weight.  As 
boys  cut  withes  from  saplings  and  bend  for 
bows  or  hoops  or  any  form  they  like,  so  he  did 
turn  and  twist  his  weak-willed  fellow  jurors  to 
sign  the  verdict  that  his  will  dictated.  Thus 
he  who  gave  but  slight  attention  to  the  trial 
and  heard  but  little  and  less  understood,  and 
what  he  heard  had  mostly  misremembered,  now 
forced  his  highly-colored  fancies  on  his  fellow 
jurors  and  wrote  their  verdict  for  them. 


CHAPTER  VI. 


Suspending  Judgment. 


The  mob  makes  quick  decisions.  A  rumor 
may  raise  a  lynching  party.  A  falsehood  which 
some  reckless  hand  has  put  in  print  may  light 
the  fagot  without  any  proof.  The  public  acts 
on  first  impression  and  rarely  stops  to  hear 
both  sides.  But  those  who  sit  in  judgment 
should  wait  with  patience  till  all  the  facts  are 
in.  Suspending  thus  the  judgment  needs  much 
training.  A  law.yer  learns  it  in  preparing  cases, 
l)ut  its  perfection  only  comes  through  long  judi- 
cial service.  That  jurors  should  possess  this 
power  all  must  agree,  but  few,  indeed,  are  thus 
equipped.  Most  reach  conclusions  in  advance 
from  lawyers'  statements  or  testimony  first  pre- 
sented. Such  minds  are  traps  that  spring  be- 
fore the  game  is  underneath,  are  guns  discharged 
half-cocked,  fireworks  that  flash  and  fizzle  in  the 
crowd.  They  reach  conclusions  on  slight  evi- 
dence and  hold  them  with  a  dogged  force.  To 
their  set  minds  all  facts  against  their  fixed  opin- 
ion are  much  unwelcome  and  treated  as  asper- 

51 


52  FRAJLTJES    OF    THE   JUFY 

sious.  Most  dread  suspension  of  their  judj;- 
ments,  for  such  susjiension  is  a  painful  state 
which  they  lack  patience  to  endure.  They  have 
no  ease  till  they  have  taken  sides  and  donned 
the  armor  which  it  wears,  and  this  is  true  of 
jurors.  Their  lives  are  spent  in  occupations 
where  they  decide  in  haste,  acting  on  general 
knowledge  or  mere  intuition,  on  any  plan  or 
(juestion,  not  waiting  to  gather  all  the  facts  or 
taking  pains  to  weigh  them.  Bnsiness  men  have 
been  considered  ideal  jurors  and  courts  are 
pleased  to  get  them  v.hen  they  can.  To  hold 
them  on  the  panel  is  not  easy,  so  numerous  and 
pressing  their  excuses,  and  when  they  sit  it  is 
against  their  wills.  They  con.stantly  complain 
that  they  are  losing  much  while  thus  on  duty, 
show  great  impatience  v/ith  the  judge  and  all 
who  take  part  in  the  trial,  alleging  lack  of  speed 
and  foolish  practice  in  the  court,  and  clamoring 
to  get  away.  Take  now  a  few  examples  of  our 
business  men  and  see  if  they  arc  fit  for  jury 
service. 

Rush  Hurryman. 

His  father  died  soon  after  he  was  born,  leav- 
ing a  little  suburban  notion  store  and  many  debts 
he  could  not  pay.  His  mother  took  the  assets 
and  her  sad  condition  checked  to  some  extent 


FRAILTIES   OF   THE  JURY  53 

the  pressing  claims  of  creditors.  They  showed 
her  mercy  and  she  carried  on  the  business  of 
the  store,  paying  in  small  installments  a  por- 
tion of  the  debts.  And  thus  for  years  she  work- 
ed, earning  a  meager  living  for  herself  and  son. 
Almost  as  soon  as  he  could  talk  the  boy  became 
his  mother's  clerk.  Here  did  he  show  such 
talent  that  it  soon  appeared  that  he  was  formed 
for  sale  and  barter.  Quick  to  detect  the  wants 
and  whims  of  buyers,  inspired  to  say  the  word 
that  stimulated  trade,  he  showed  much  skill  to 
reach  the  buyer's  purse.  He  knew  how  large  a 
price  could  be  obtained,  whom  he  could  safely 
trust,  and  just  the  moment  when  to  push  the 
goods  upon  the  buyer.  This  did  he  learn  to  do 
with  such  adroitness  and  sweet,  winning  ways 
that  the  hesitating  buyer  felt  it  sin  to  doubt  the 
seller's  faith  or  fairness  of  the  price.  What 
learning  he  acquired  he  got  about  the  counter 
in  his  store,  and  contact  with  his  customers  and 
those  from  whom  he  bought.  When  to  buy  and 
what  and  when  and  how  to  sell  and  get  the  high- 
est price,  these  were  his  quest  and  made  his 
world  of  knowledge.  This  he  acquired  so  rap- 
idl.y  and  used  with  so  much  skill  that  long  be- 
fore his  manhood  had  been  reached  the  legacy 
of  debts  his  father  left  with  all  the  grinding 


54  FKAILTIES   OF   THE  JURY 

intiM-ost  which  it  drew  was  fully  paid  and  the 
little  notion  store  expanded  to  a  general  one 
where  every  kind  of  goods  were  kept.  The 
suburb  where  he  lived  increased  in  population 
and  most  of  it  he  knew;  with  his  in- 
creasing means  his  fame  increased,  and 
many  saw  his  rising  power  and  prophesied 
a  brilliant  future.  "When  he  had  reached 
the  age  of  twenty-one  an  offer  came  that  took 
him  to  a  central  point.  The  owner  of  a  larger 
store  weighed  down  with  years  desired  a  younger 
man  as  partner  in  his  business,  and  of  all  he 
knew  this  thrifty  boy  appeared  to  him  the  best. 
This  offer  he  embraced,  became  a  member  of  the 
combination  formed,  proved  worthy  of  the  trust 
impo.sed,  mastered  so  soon  its  intricate  affairs 
that  its  large  business  came  to  his  control  and 
he  assumed  a  pedestal  from  which  he  viewed  the 
world  of  trade  and  had  his  finger  on  its  market's 
pulse.  Quicker  and  farther  than  all  competitors 
his  bright  eyes  saw  and  intellect  discerned. 
Ilis  lithe  and  agile  body,  nimble  as  his  mind, 
overmatched  his  slow  opponents.  Numbers  that 
told  of  profit  and  of  loss  he  quickly  read  and  at 
a  glance  absorbed  the  gist  of  that  affecting  his 
affairs.  With  telescopic  vision  he  beheld  the 
mountain  peaks  that  commerce  reared  in  lands 


FRAILTIES   OF   THE  JURY  55 

remote,  and  was  the  first  to  see  the  storm  clouds 
threatening  to  destroy,  and  note  the  place  where 
they  would  likely  break.  He  rarely  bought  too 
much,  but  when  he  did  and  saw  a  loss  impend 
he  quickly  turned,  cut  short  his  loss  and  let  his 
profit  run.  One  by  one  his  rivals  bit  the  bitter 
crust  of  ruin,  their  wares  were  sacrificed  and 
he  became  the  buyer.  Their  wrecks  he  made  his 
glorious  wreaths.  As  they  fell  down  he  rose  and 
grasped  a  wider  field  of  trade,  waxed  in  riches 
and  in  power,  and  where  a  thousand  common 
merchants  thrived  but  few  remained.  These 
were  mammoths  of  colossal  wealth-  and  he  was 
one.  These  still  were  his  competitors  until  he 
shrewdly  struck  the  master  stroke  that  blended 
all  in  one  immense  combine.  This  placed  him 
at  its  head.  Here  from  a  central  point  for  many 
years  he  held  a  thousand  reins,  guiding  many 
fiery  steeds  all  bent  with  haste  for  gain;  and 
thus  he  toiled  until  with  age  his  flesh  was  shriv- 
eled to  the  bone  by  anxious  care,  his  mouth  was 
puckered  like  a  miser's  purse,  his  features  pallid 
as  the  face  of  wan  distress,  and  yet  he  moved 
like  lightning,  excelling  all  in  mental  speed  and 
quick  resolve.  This  man  was  caught  while  in 
the  hottest  fever  of  his  mighty  strife  for  gain 
and  made  to  sit  upon  a  jury.     There  he  was 


56  FRAILTIES    OF    THE   JURY 

askt'd  to  try  a  case  wherein  the  question  was, 
who  owned  a  certain  brindle  calf.  Would  he  sit 
calmly  throufrh  the  summer  days,  dismiss  the 
business  of  his  mammoth  store,  confine  his  mind 
to  note  the  long  description  of  this  calf  and  of 
the  one  that  had  been  lost?  Would  he  with 
care  collect  descriptive  points  from  all  the  wit- 
nesses who  testified  tending  to  show  resemblance 
or  dissemblance  in  the  calf,  giving  to  each  due 
weight,  and  from  the  whole,  enlightened  by  the 
lawyer's  argument  and  instructions  of  the  court, 
give  to  the  quest  a  sober,  careful,  and  deliberate 
judgment,  forthcoming  only  after  all  had  been 
considered?  I  am  certain  he  would  not.  He 
would  regard  the  question  as  a  trifle,  mooted  by 
fools,  not  worth  his  serious  thought.  He  would 
decide  it  quickly  and  turn  away  as  if  it  were 
a  nuisance  which  courts  and  lawyers  bred  for 
their  own  gain.  Thus  would  he  be  out  of  his 
proper  place  and  no  more  fit  for  court  affairs 
than  lawj'ers  for  his  store. 

Xor  is  the  merchant  rasher  than  his  fellows. 
The  world  of  commerce  is  a  den  of  beasts  with 
claws  and  teeth  to  tear  down  and  devour.  Those 
best  succeed  who  are  most  agile,  and  to  their 
strength  add  speed.  Look  at  that  broker  dancing 
to  the  ticker.    His  ears  are  quick  to  hear  its  tale 


FRAILTIES   OF   THE   JURY  57 

that  may  mean  wealth  or  ruin.  Behold  him 
tread  on  air  when  he  succeeds,  or  see  him  drag 
his  lifeless  limbs  when  withered  by  defeat.  Now 
uj),  now  down,  then  up  again,  swings  the  swift 
pendulum  of  his  fickle  fortune  from  day  to  day 
until  at  last  death  calls  his  turn,  his  option 
closed,  and  drags  him  from  the  floor"  a  mass  of 
shattered  nerves  and  wasted  sinews.  His  faded 
eyes  in  frenzy  roll  as  he  in  faltering  accents  begs 
a  chance  to  place  a  further  margin.  Since  first 
in  youth  his  frail  bark  met  the  billows  that 
surged  so  wildly  on  the  speculative  sea,  his  every 
nerve  has  strained  with  utmost  tension  to  grasp 
the  goal  of  wealth.  Days  in  hot  haste  followed 
by  nights  of  fever,  uneasy  tumbling  on  a  sleep- 
less pillow  he  plotted  eagerly  to  win,  and  fondly 
counted  his  expected  gains.  His  life  is  but  a 
battle  wherein  minutes  may  fix  the  fate  of  years 
and  speed  alone  may  bestow  the  prize.  Can  such 
as  he  sit  on  a  petit  jury  and  hear  with 
patience  of  a  clothes-liue  quarrel?  Can  he  with 
care  and  neatness  piece  together  the  scraps  and 
fragments  of  each  story  told,  until  in  one  clear 
garment  of  unsullied  truth  the  whole  may  glow 
i]i  radiance  and  perfection?  Such  seems  to  me 
unlikely.  With  deep  disgust  his  mind  would 
surely  wander  far  from  the  case  and  curse  the 


58  FRAILTIES   OF   THE   JURY 

luck  which  gave  him  such  a  task.  Before  the 
evidence  was  closed  or  any  witness  had  been 
sworn  he  would  be  ready  with  his  judgment  of 
blame  for  one  or  both. 

Turn  from  this  broker  to  another  juror  whose 
life-work  lies  in  quite  a  different  field.  Behold 
the  prince  of  butchers  whose  keen  knife  lets  life- 
blood  daily  from  a  myriad  swine.  Sturdy  he 
stands,  stained  to  the  waist  in  gore,  grasping 
his  blade  for  no  unsteady  stroke.  Not  great 
Achilles  on  the  field  of  Troy  piling  the  gory 
ground  with  heroes  slain  has  shed  more  blood 
than  he  draws  in  a  day.  Quick  as  a  flash  his 
trained  eye  notes  the  vein,  his  strong  arm  swiftly 
guides  the  unerring  steel  and  draws  it  forth 
again  so  suddenly  that  the  spurting  blood  scarce 
strikes  it  ere  it  finds  another  place  in  its  next 
victim's  throat.  Thus  daily  he  deals  death 
with  greatest  speed  and  grace  of  motion 
and  his  struggling  captives  have  scarcely 
time  to  shriek  before  their  lives  have 
fled.  And  well  he  may  be  active,  for  many 
thousands  wait  along  the  line  to  finish  the 
products  of  his  hands.  His  keen  knife  forms  a 
most  important  link  between  the  pig-sty  and 
the  royal  spit,  and  millions  scattered  over  all 
the   globe   are  eager  for  the   finished   product. 


FRAILTIES   OF   TEE   JURY  59 

•Would  this  rare  genius  of  the  packing  plant  who 
looks  and  strikes  as  quickly  as  he  looks  be  fitted 
for  the  jury?  Would  he  suspend  his  judgment 
or  keep  his  mind  from  forming  a  conclusion  till 
all  the  facts  and  reasons  are  presented? 

Take  then  the  music  m.aster,  who  dreams  ca- 
dences and  arpeggios  and  hangs  his  hopes  of 
wealth  and  ease  on  sweet  caressing  sounds.  Be- 
hold him  tear  his  uncropped  locks  in  furious 
rage  or  seize  his  awkward  student's  instrument 
and  smash  it  on  the  luckless  urchin's  head  be- 
cause forsooth  he  has  unwittingly  mixed  discord 
with  the  velvet  symphony.  Would  such  as  he  be 
likely  to  sustain  suspended  judgment  through 
the  many  days  of  trial  ? 

Then  take  the  pampered  pets  of  overloaded 
wealth  whose  highest  cares  converge  and  center 
in  the  color  of  a  tie,  the  creasing  of  a  pair  of 
pantaloons  or  the  denouement  of  a  chance  flirta- 
tion. Are  these  the  kind  who  hold  their  minds 
at  bay  until  the  time  is  ripe  for  forming  judg- 
ment? If  these  the  generals  in  the  field  of 
action  and  these  the  darlings  in  the  homes  of 
plenty  have  not  the  poise  and  patience  to  suspend 
their  judgment  until  the  proper  time,  what  of  the 
privates  in  industrial  armies  ?  What  of  the  ragged 
wretches  whipped  by  fortune?     Can  those  who 


60  FRAILTIES   OF   THE   JURY 

see  the  almshouse  or  a  prison  the  only  haven  of 
life's  dreary  winter,  and  like  the  worn-out  swim- 
mer still  must  buffet  against  the  tide,  can  such 
be  calm  and  steady  irarnerinir  from  day  to  day 
with  care  the  sheaves  of  evidence,  loading  each 
in  its  appropriate  place  and  keep  the  load  iin- 
trammeled  till  taken  to  the  room  where  it  is 
threshed  and  winnowed  and  the  grains  of  truth 
extracted  from  the  straw  and  chaff? 

Habits  of  thought  the  products  of  a  life  are 
i!ot  abandoned  in  a  day  because  a  judge  requests 
it.  The  mind  is  a  machine  nicely  adjusted  and 
set  for  certain  actions,  which  it  will  have  or 
none.  The  passing  years  have  put  the  parts  in 
place,  set  cogs  and  shafting  and  the  belts  there- 
on, and  fixed  the  speed  and  ends  to  whieli  it 
moves,  and  when  some  unskilled  engineer  mis- 
takes its  nature  and  puts  it  to  a  different  task 
he  soon  discovers  in  the  poor  results  the  proof  of 
his  perversion. 

^Machines  designed  for  shaping  spikes  can  not 
be  used  to  sharpen  needles,  and  minds  so  unac- 
customed to  deliberate  action  are  not  adapted 
for  judicial  duty. 


CHAPTER  VII. 


Bias. 


Bias  iu  countless  ways  brings  misery  to  the 
human  race.  All  annals  of  mankind  reveal  its 
havoc.  The  stories  of  its  crimes  blot  every  page. 
It  plunges  nations  into  war,  rends  empires  with 
secession,  and  often  makes  the  state  a  hot-bed 
of  rebellion.  It  organizes  every  mob  that  bids 
defiance  to  the  law.  Inspired  by  it  inhuman 
cruelty  becomes  delight.  It  fastens  to  the  cross 
and  stake  the  purest  and  most  loving'  hearts.  It 
lights  the  fagot  and  drives  the  cruel  nails  that 
ignorance  provides  for  seer,  sage  and  saint;  in- 
cites blind  zeal  and  fires  the  stupid  crowd  against 
the  heralds  of  a  brighter  day.  It  spreads  its 
poison  in  society  of  every  rank,  depletes  success 
in  every  branch  of  man's  affairs,  and  strikes  at 
every  institution  of  the  state,  but  nowhere  has  it 
greater  power  to  harm  than  in  the  courts. 

A  most  pernicious  form  abounds  in  many 
jurors.  They  yearn  to  help  the  weak  against 
the  strong.  This  kind  of  bias  seldom  is  dis- 
closed before  it  is  too  late,  for  those  who  have 
it  swear  they  have  it  not,  and  protest  strongly 


62  FRAILTIES   OF   THE  JURY 

iu  their  solemn  oatlis  that  no  amount  of  crying 
need  or  claims  of  sympathy  can  swerve  their 
judgment  in  the  least  degree.  All  this  they  may 
believe,  yet,  when  the  crucial  test  is  made,  and 
they  see  crippled  innocence  oppressed  with  want, 
praying  relief  against  defendants  armed  with 
w -allh,  they  can  not  stay  the  sympathetic  hand, 
and  thus  the  rich  man  finds  his  wealth  against 
liiin  weighed;  the  adult  by  the  infant  is  out- 
weighed; a  woman's  rights  made  greater  than  a 
man's,  and  poverty  soon  tips  the  beam  when 
corporate  wealth  sits  on  the  other  scale.  All  will 
admit  that  neither  youth  nor  age,  sex,  wealth 
nor  health  nor  any  kind  of  status  should  move 
the  scale  a  fraction  of  a  hair  when  justice 
weighs  the  facts  before  the  law.  But  what  does 
a  sympathetic  jury  care  for  this?  Their  heart- 
throbs stifle  reason's  voice  Avhile  they  with  lavish 
hands  divide  the  gifts  by  fortune  made  and 
make  the  rich  disgorge  to  feed  the  poor,  the 
strong  to  help  the  weak,  the  sterner  sex  to  bear 
the  weaker 's  load.  Thus  they  despoil  defend- 
ants, and  make  the  court  an  almshouse  for  the 
poor.  Most  men  are  tender  toward  the  needy 
and  much  inclined  to  aid  them..  This  kindness 
should  appear  in  acts  and  gifts  made  by  each 
person  on  his  own  account,  from  his  own  means, 


FRAILTIES   OF   TEE  JURY  63 

not  taken  under  color  of  the  law  pretending  pay- 
ment of  a  debt  where  none  exists.  To  thus 
despoil  another  of  his  means  is  confiscation  and 
should  be  classed  as  such.  Few  are  the  jurors 
who  have  not  this  fault  in  some  degree.  They 
lack  that  clear  perception  which  should  restrain 
the  promptings  of  the  heart,  and  thus  they  fall 
an  easy  prey  to  such  appeals  as  lawyers  make  to 
stir  their  blood. 

Another  kind  of  bias  let  us  note — ^the  sort 
inspired  by  certain  kinds  of  suits.  Sometimes 
a  claim  is  quite  distasteful  to  the  jury  because 
the  law  which  gives  the  right  is  not  approved, 
and  they  refuse  to  grant  relief  save  on  the 
strongest  proof.  Sometimes  they  so  abhor  the 
crime  that  has  been  charged  that  they  will  raise 
the  sword  to  strike  upon  a  mere  suspicion,  and 
then  the  accused  can  not  escape  their  wrath 
except  by  clearest  proof  of  innocence.  That  bias 
such  as  this  is  most  unjust  all  will  agree.  The 
matter  in  dispute  should  not  affect  the  law,  nor 
change  the  measure  of  the  evidence  required  to 
prove  a  fact,  a  bushel  should  be  the  same  in  size 
of  any  substance  measured,  a  gallon  should  con- 
tain four  quarts  of  soda  or  champagne.  Most 
jurors  can  not  comprehend  this  simple  truth  and 
so  stretch  their  arms  to  jerk  one  culprit  from 


G4  FRAILTIES   OF   THE  JURY 

the  jail  and  push  with  eager  zeal  another  in, 
they  pass  upon  the  wisdom  of  the  law  and  if 
they  find  it  faulty,  set  the  captive  free.  If  they 
approve  they  gladly  give  it  force.  When  some 
vile  crime  arouses  public  rage,  they  take  the 
first  suspected  as  an  object  lesson  and  if  he  can 
not  show  an  alibi  in  proof  so  clear  that  none  can 
find  the  spot  to  place  suspicion  on,  they  seize 
him  in  the  whirlwind  of  their  Avrath  and  send 
him  to  the  gallows.  AVhen  thus  excited  by  a 
thirst  for  blood,  the  average  jury  then  becomes 
a  mob;  and  a  jury  trial  but  a  lynching  party, 
conducted  with  some  order.  They  sense  the 
feelings  in  the  air,  and  recognize  no  curbs  to 
make  them  wait  for  proof.  The  court's  instruc- 
tions are  but  paper  wads  blown  from  uncertain 
guns  which  make  some  noise  but  always  miss  the 
mark,  unless  they  tell  the  jury  to  acquit.  While 
bias  follows  general  lines,  'tis  subject  to  no  cer- 
tain rules.  Most  lean  in  favor  of  a  damage  claim 
when  brought  by  injured  persons,  but  some  are 
strongly  set  against  such  suits.  ]\Iany  dislike 
the  liquor  laws  and  strive  against  convictions 
imder  them,  and  others  loathe  the  traffic  with  so 
great  a  hate  that  they  convict  upon  the  slightest 
proof;  a  common  gamester  shields  the  gambling 
den  and  bends  the  bars  to  let  its  boss  escape ;  the 


FRAILTIES   OF   THE  JURY  65 

brothel's  patron  lets  its  inmates  go,  yet  there 
are  some  who  patronize  each  place  that  go 
against  the  facts  to  punish  those  accused  of 
either  crime.  Bias  may  spring  from  politics  or 
any  social  status,  may  have  religion  for  its  foun- 
tain head,  or  learning  as  the  object  of  its  hate. 
The  ignorant  despise  the  learned  and  when  a 
doctor  or  a  lawyer  sues  for  fees,  oppose  the  pay- 
ment of  his  legal  claim  and  slice  the  sum  and 
thus  appease  their  bias.  So  various  are  the  kinds 
of  bias  that  find  a  lodgment  in  the  minds  of 
jurors  that  listing  them  becomes  too  great  a 
task.  To  any  catalogue  we  muse  soon  add  some 
fresh  and  startling  cause  of  prejudice,  the  off- 
spring of  a  folly  not  before  suspected.  Take 
two  examples  of  the  common  kind  quite  often 
seen. 

Anthony  Saint. 

His  form  was  tall  and  slender,  his  nose  was 
long;  his  hair  was  coarse  and  straight;  he  wore 
it  long  and  usually  unkempt;  his  beard  was 
patriarchal  and  both  hair  and  beard  were  thin 
and  of  iron  gray,  resembling  much  the  whiskers 
of  a  goat.  His  cheeks  were  sunken;  his  fore- 
head thin  and  high ;  his  eyes  pale  blue,  set  under 
bushy  brows,  which  bore  the  traces  of  a  constant 
frown,   his   temperature   was   cold;   complexion 


6G  FRAILTIES   OF   THE  JURY 

pale;  his  garments  plain  and  misfits  of  the 
coarsest  kind,  showintr  by  many  stains  of  vari- 
ons  hues  the  proof  of  their  long  use;  he  stood 
erect,  straight  as  a  pine  and  walked  with  firm, 
defiant  tread ;  he  had  descended  from  the  loins 
of  toil,  a  line  of  men  inured  to  the  hardest  kind 
of  manual  tasks.  He  was  a  self-made  man  of 
which  he  was  most  proud,  he  scorned  all  shams, 
despised  the  hypocrite,  and  looked  on  learning 
with  contempt.  Prompt  and  exact  in  all  his 
deals  he  often  walked  the  floor  late  in  the  night 
for  fear  he  could  not  meet  a  bill  maturing  on 
the  morrow.  So  anxious  was  he  to  be  fair  and 
true,  and  keep  above  reproach,  that  he  gave 
many  more  than  was  their  due;  and  yet  sus- 
pected every  other  man  and  found  in  all  some 
fault  that  he  disliked;  he  had  great  reverence 
for  the  decalogue,  and  as  he  understood,  obeyed, 
yet  formed  no  union  with  any  church,  because 
he  found  no  creed  he  could  endorse ;  in  politics 
was  independent,  voting,  with  pride,  for  those 
who  had  no  chance  to  win.  He  deemed  his  coun- 
try's  institutions  wrong,  and  felt  himself  in- 
spired to  urge  a  change  in  laws  and  their  en- 
forcement, and  so  from  crown  to  toe  was  filled 
with  strongest  bias,  yet  was  he  sure  that  every- 
one was  wrong  except  himself  and  he  the  only 


FRAILTIES   OF   THE  JURY         67 

fair,  unbiased  person  in  the  land.  He  was  some- 
times compelled  to  sit  upon  a  jury.  Here  he 
considered  courts  were  bad  inventions,  contrived 
by  lazy  and  dishonest  lawyers  to  take  advantage 
of  the  simple  minded.  He  held  all  controversies 
should  be  settled  out  of  court,  where  some  fair 
man  (such  as  himself)  should  be  the  chosen 
arbiter,  and  so  was  opposed  to  every  suit  and 
every  one  who  brought  it  into  court.  A  slight 
suspicion  raised  against  a  woman  made  him  dis- 
credit her  whole  story.  No  spectacle  of  sorrow 
touched  his  heart  or  softened  his  austerity,  and 
those  who  sought  to  move  him  ly  a  show  of 
anguish  caused  him  to  turn  against  them;  he 
would  not  listen  to  the  lawyers'  talk,  assuming 
he  knew  more  than  they,  nor  did  he  heed  in- 
structions from  the  judge.  The  law  he  claimed 
was  common  sense,  and  this  he  thought  he  had. 
AVhen  the  jury  had  retired  he  stated  what  the 
verdict  ought  to  be,  assuring  all  that  he  would 
sign  no  other;  he  said  but  few  words  and  then 
maintained  a  sullen  silence;  his  fellow  jurors 
plead  with  him  for  hours  and  sometimes  days 
seeking  to  compromise  upon  a  verdict,  but  found 
the  effort  vain,  and  either  the  others  came  to 
him  or  else  there  M^as  no  verdict. 

Note  now  a  juror  of  a  different  type. 


68         FRAILTIES   OF   THE  JURY 

Barney  Blubber. 
lie  was  short  and  fat,  bo\v-lef,'god  and  round 
in  all  his  features,  his  face  smooth  shaven  and 
his  hair  clipped  closely  to  the  scalp,  his  short, 
fat  neck  as  ruddy  as  his  full  red  cheeks,  his  eyes 
were  large  and  watery,  his  eye-brows  arched, 
nose  thick,  lips  large,  chin  full  and  deeply  dim- 
pled. The  world  and -he  were  on  good  terms 
and  all  its  pleasures  on  the  common  plane  were 
suited  to  his  taste.  Speculations  on  the  future 
state  were  naught  to  him ;  he  puzzled  not  his 
brain  with  mgiaphysic  thoughts;  he  championed 
no  reforms,  was  fitted  to  the  world  as  it  now  is, 
and  wished  to  see  no  change.  He  was  not  moved 
by  scruples  or  the  claims  of  persons  or  the  pub- 
lic, his  heart  was  large,  his  hand  was  warm,  his 
friends  were  many,  and  to  their  wants  he  gave 
a  quick  response.  When  on  the  jury  he  showed 
his  feelings  for  an  injured  plaintiff  who  sued 
for  damage  against  the  rich,  the  last  speech 
always  caught  his  fancy — such  the  advantage 
that  the  plaintiff'  had.  He  scarcely  could  re- 
strain his  tears  when  sorrows  were  depicted  and 
his  sympathetic  eyea  inspired  the  plaintiff's 
advocate  to  make  a  moving  plea.  But  when  the 
case  was  criminal,  involving  life  or  liberty,  he 
was  against  the  state,  and  favored  an  acquittal 


FRAILTIES   OF   THE  JURY  69 

unless  the  charge  was  oue  of  great  atrocity  and 
then  the  victim  of  the  crime  might  have  his  sym- 
pathy and  cause  him  to  convict.  He  Vv^as  a  child 
of  impulse  with  no  certain  sense  of  right,  and 
seldom  the  first  opinion  he  had  formed  would 
last  until  the  end.  Some  other  juror  of  a  firmer 
sort  with  a  persuasive  voice  could  swaj^  him 
from  his  moorings  by  statements  not  in  evidence, 
and  make  him  sign  a  difiPerent  verdict  from  the 
oue  which  he  had  planned.  Nor  was  he  strong 
to  stand  against  attack;  he  cowed  before  the 
threatening  attitude  of  those  who  would  brow- 
beat or  use  coercion,  and  when  the  larger  num- 
ber took  a  different  course  than  his  opinion 
pointed,  he  changed  reluctantly,  and  followed 
them  rather  than  to  disagree,  accepted  that 
which  he  had  first  opposed.  He  thus  gave  up 
his  sympathies  and  left  the  path  of  duty  to 
curry  favors  from  his  fellow  jurors.  Such  men 
are  often  found  upon  a  jury;  sometimes  they 
make  a  large  majority  and  often  all  the  jury, 
and  then  the  last  speech  gets  the  verdict,  un- 
less the  other  side  has  much  the  larger  claim 
for  sympathy.  Where  such  a  man  as  Saint  is 
mixed  with  Barney  Blubber  he  writes  the  ver- 
dict, if  one  is  reached.  Between  these  two  ex- 
tremes are  many  grades,  some  filled  with  bias 


70  Fh'AlLTIES   OF    THE   JURY 

when  they  take  their  seats;  some  ready  to  im- 
bibe it  as  a  thirsty  sponge,  and  others  weak  as 
water  to  its  influence.  The  slightest  trifle  oft- 
times  wins  the  ease,  a  eireiunstanee  light  as  the 
thinnest  gas  that  elt'ervosces  in  the  air,  will 
often  in  such  minds,  have  greater  weight  than 
reams  of  evidence  read  in  depositions  or  solemn 
asservations  made  from  the  witness  stand  bj^ 
those  whose  characters  are  unassailed.  A  smile, 
a  smirk,  a  handshake  from  a  lawyer  in  the  case 
calling  the  juror  by  his  given  name  as  in  famil- 
iar friendship,  a  chance  resemblance  to  a  rela- 
tive, a  residence  at  the  juror's  native  town, 
voting  his  ticket,  attending  the  same  church, 
matters  which  have  no  bearing  on  the  points  in 
issue,  possess  great  weight  in  making  up  a 
verdict.  These  facts  are  known  to  lawyers  and 
thus  they  bow  and  fawn,  hoping  to  win  the 
juror's  favor  or  counteract  the  bias  inspired  by 
courtly  conduct  on  the  other  side.  And  where 
the  cause  espoused  gives  chance  to  sue  for  pity 
or  awaken  rage,  they  beg  for  tears  in  tones  like 
mourning  doves,  or  call  for  vengeance  like  an 
angr}'  god.  In  this  way  has  a  jury  trial  become 
uncertain  as  a  game  of  chance,  defying  all  pre- 
dictions and  in  its  conduct  oft  is  so  absurd  that 
did  not  life  and  liberty  depend  thereon,  it  would 


FRAILTIES   OF   THE  JURY  71 

become  a  mark  for  laughter  or  contempt.  The 
men  who  sit  in  judgment  on  their  fellow  men 
should  tower  above  these  petty  things,  and  see 
beyond  the  mists  that  bias  has  upraised  the  fair, 
unclouded  face  of  justice,  as  formed  and  finished 
by  the  law  and  facts. 


CHxVPTER  VIII. 


Judging. 


We  enter  now  the  precincts  of  that  room  in 
which  the  jury  gather  to  consult;  that  sacred 
sanctum  where  blind  justice  secret  sits  to  weigh 
all  matters  with  her  even-handed  scales.  Each 
juror  now  becomes  a  judge  of  high  prerogative. 
From  out  the  many  chambers  of  his  mind  he 
must  bring  forth  the  facts  in  evidence,  the 
ruling-s  of  the  court  thereon  and  see  in  memory 
again  the  witnesses  who  told  their  stories  to 
him  from  the  stand ;  he  must  recall  their  motions 
and  their  manner,  the  tone  and  texture  of  their 
emanations  and  every  sign  and  symptom  that 
give  the  stamp  of  truth  or  falsehood  to  their 
tales.  Like  two  proud  champions  set  each 
against  the  other  in  knightly  lists  for  mortal 
combat,  he  should  arrange  and  place  the  facts 
which  fight  on  either  side,  observe  all  points  of 
strength,  and  note  all  blemishes,  find  every  hole 
or  weakened  joint  disclosed  in  cither's  armor, 
and  watching  closely  the  minutest  motion  and 
hearing  quickly  the  faintest  word,  decide  which 

72 


FRAILTIES   OF   THE  JURY  73 

charapiou  is  the  knight  of  truth  and  which  is 
the  pretender.  His  eyes  must  be  familiar  with 
the  face  of  truth  that  he  may  recognize  her  at 
a  glance.  His  ears  must  know  the  tone  in  which 
she  speaks  that  he  may  not  mistake  her  words. 
A  botanist  when  shown  a  leaf  tells  accurately 
the  tree  on  which  it  grew.  A  judge  familiar 
with  the  ways  of  witnesses  can  easily  detect  the 
nature  of  a  tale.  All  matters  move  in  perfect 
order ;  causes  connect  effects  in  natural  sequence, 
and  make  a  perfect  chain  which  has  no  missing 
link.  Feelings  and  even  thoughts  are  causes, 
each  having  an  effect  of  its  own  nature,  and  he 
who  sees  all  clearly  reads  the  motive  in  the  act. 
The  true  tale  has  a  foliage  differing  from  the 
false.  Its  roots  run  deeper  and  its  branches 
wider  spread;  its  fruit  a  sweeter  flavor  to  the 
taste,  and  looks  much  finer  when  examined 
closely.  All  products  manufactured  for  the 
occasion  begin  and  end  too  soon,  and  so  in  their 
extremities  lack  fitness  with  surrounding  facts. 
A  lie  is  like  a  patch  which  some  shrewd  tailor 
places  on  a  garment ;  so  well  it  seems  to  fit  that 
the  unpraeticed  eye  detects  it  not,  but  every 
tailor  sees  it  at  a  glance.  A  perjured  story  is 
a  counterfeit  which  long  may  pass  unchallenged 
by  those  unskilled  in  detecting  it,  but  when  it 


74  FRAILTIES   OF   THE   JURY 

nioets  the  practiced  eye,  its  baseness  is  at  once 
observed.  As  writing  experts  tell  the  note  that's 
forged  so  expert  judges  find  the  tale  that's  false. 
A  man  must  sei"ve  his  time  in  every  field  where 
he  becomes  an  expert,  and  training  in  one  trade 
will  not  suffice  for  others;  some  show  great  skill 
in  guessing  weight  of  cattle,  who  could  not  esti- 
mate a  load  of  hay  and  tell  its  weight  within  a 
hundred  pounds.  No  one  is  born  with  wisdom. 
In  every  calling  all  must  it  acquire  by  trudging 
up  the  stony  hill  of  hard  experience;  thus  only 
can  they  reach  the  lofty  heights.  Weighing 
evidence  and  detecting  truth  are  no  exceptions; 
some  say  that  truth  is  in  a  well.  If  this  is  so, 
who  draws  her  forth  must  learn  to  dive.  In 
litigation  truth  is  often  hid  beneath  a  mass  of 
many  falsehoods  and  fair  seeming,  and  he  who 
would  uncover  her  must  learn  to  dig. 

The  task  of  picking  out  the  truthful  tale  is 
not  so  easy  as  it  seems,  but  'tis  the  pastime  of  a 
summer  afternoon  compared  with  that  much 
greater  task  which  every  juror  should  perform. 
He  must  apply  this  truth  when  ascertained  to 
all  the  complicated  questions  in  the  case,  and 
these  are  often  many.  Let  me  a  common  in- 
stance cite.  Here  is  an  ordinary  case :  A  suit 
for  damage  caused  by  negligence.     The  ({ues- 


FRAILTIES   OF   THE  JURY  75 

tions  that  arise  are  few,  compared  to  many  other 
suits,  but  are  enough  to  puzzle  untrained 
minds.  Was  plaintiff  injured  as  he  claims,  and 
if  so,  where,  how,  and  when,  and  how  much 
was  he  injured?  Was  the  defendant  negligent 
as  charged,  and  was  this  negligence  the  cause  in 
whole  or  part;  was  plaintiff  free  from  negli- 
gence contributing  to  cause  his  hurt,  and  when 
will  he  recover?  What  has  the  plaintiff  lost  in 
earnings  and  expense,  and  what  must  he  expend 
for  further  treatment?  What  pain  has  he  en- 
dured or  must  endure,  and  what  sum  of  money 
will  suffice  to  compensate  him  for  his  injuries? 
These  questions  may  seem  simple,  yet  they  are 
but  names  of  groups  of  other  questions,  mixed 
together  into  one  compound  question,  requiring 
expert  sl^ill  to  analyze,  and  thus  divided  into 
several  parts,  each  part  is  still  sufficiently  com- 
plex to  give  an  expert  quite  a  task.  The  juror 
who  can  perform  this  feat  must  have  a  mental 
structure  capable  of  thinking  long  and  clearly; 
he  must  be  able  to  sustain  a  train  of  thought  in 
logical  connection  until  each  question  in  proper 
order  and  in  just  relation  has  met  with  its  solu- 
tion and  each  solution  carried  to  the  end  has 
with  the  whole  allied  formed  the  criterion  for 
his  verdict.     These   various  questions  are  like 


76  FRAILTIES   OF   THE  JURY 

many  burdens  laid  on  the  steps  that  lead  into  a 
temple :  the  weak  may  take  up  one  and  carry  it, 
but  he  who  properly  ascends  must  take  and  carry 
all  until  the  top  is  reached,  for  all  compose  the 
basis  of  the  verdict.  This  work  requires  a 
thinker  of  uncommon  skill  who  has  a  mind  that 
knows  no  master  but  the  truth :  a  mere  automa- 
ton or  pipe  through  which  another  blows  or 
plays  upon  is  not  sufficient.  All  creatures  have 
some  reason  and  show  ability  to  think  about 
familiar  things;  men  of  small  minds  may  in 
their  narrow  sphere  teach  wisdom  to  the  wisest, 
while  men  accounted  great  in  intellect  when 
forced  outside  the  sphere  of  their  experience  v.nll 
often  fall  and  be  the  easy  marks  for  fraud  and 
crime.  Most  men  dislike  to  think  out  of  their 
spheres;  they  save  themselves  the  effort  and 
adopt  the  notions  of  their  fellows,  or  they  follow 
blindly  time-worn  precepts  of  the  honored  dead. 
Great  numbers  seek  a  master  who  will  assume  to 
guide  them  and  plan  in  their  behalf,  and  when 
some  low-brov.'ed  egotist  assumes  superior  knowl- 
edge, him  they  much  adore,  cling  to  and  follow, 
and  for  his  boldness  give  him  wealth  and  most 
obsequious  service.  Let  me  present  a  type  of 
these  who  always  seek  to  be  controlled. 


FRAILTIES   OF   THE  JURY         77 

Job  Devotee. 
He  was  a  thin  and  rabbit-headed  man,  a  blue 
nose  blonde,  with  fine  soft  hair,  long  neck  and 
bright  blue  eyes,  and  had  a  beg-your-pardon 
air  about  him;  from  youth  he  had  been  docile 
and  obedient,  followed  the  guidance  of  his 
parents,  obeyed  his  teachers  and  employers  and 
all  who  gave  him  orders  without  a  question  or 
misgiving.  In  politics  he  bore  the  torch,  at 
church  he  passed  the  hat,  in  business  was  a 
body  servant  who  v/ore  his  master's  livery  with 
pride;  he  held  the  cup  when  others  drank  and 
vv'aited  at  the  door  Avhile  others  watched  the 
play;  he  was  a  fashion  plate  in  dress,  in  man- 
ners was  a  model,  moved  like  a  dancing  master, 
and  like  a  water  spaniel  fawned  on  the  hand 
that  fed  him.  He  quickly  saw  the  thoughts  and 
wants  of  other  men,  endorsed  their  notions  and 
gratified  their  wishes.  In  the  opera  of  life  he 
was  a  shining  member  of  the  chorus,  coming  on 
call  and  standing  where  directed.  He  looked 
to  others  as  his  natural  masters,  and  those  the 
most  presumptions  thought  exalted  beings  whom 
he  was  made  to  serve.  Like  to  the  vine  that 
twines  around  the  tree  or  moss  that  hugs  the 
rock  his  plastic  mind  leaned  clingingly  on  those 
who  would  direct  him.    Sometimes  this  man  was 


78  FRAILTIES   OF   THE  JURY 

summoned  on  a  jury,  and  here  in  harmony  with 
his  whole  life  he  echoed  but  the  views  of  fellow 
jurors  and  signed  the  verdict  which  the  others 
formed,  having  no  more  to  do  with  guiding  the 
course  of  justice  than  stokers  at  the  steamer's 
furnace  in  steering  it  through  stormy  seas. 

Many  Job  Devotees  appear  on  juries,  all  juries 
have  them,  and  thus  the  verdict  rarely  reflects 
the  judgment  of  twelve  men.  Pretending  to  be 
such,  it  is  a  sham  and  well  it  may  be  asked,  if 
filching  money  from  a  suitor  by  such  contrivance 
is  not  as  shameful  as  picking  pockets,  while  pi-e- 
tending  to  teach  the  loser  moral  precepts. 

We  claim  a  great  regard  for  mental  training 
and  wreath  with  laurels  those  of  greatest  skill; 
we  tax  ourselves  to  fill  the  land  with  schools  and 
strive  to  train  our  youths  in  ways  of  wisdom. 
Our  doctors,  lawyers,  ministers  and  merchants, 
mechanics,  bankers,  and  tradesmen  of  every 
class  all  in  one  voice  demand  the  aid  of  skill. 
In  every  public  office  in  the  land,  we  call  for 
training  with  but  one  exception,  and  that  is  the 
jury.  Our  urchins  when  they  play  at  ball  with 
nothing  but  their  pride  at  stake,  will  not  engage 
an  umpire  ignorant  of  the  game.  And  even 
wild  geese  flying  o'er  our  heads  move  in  good 


FRAILTIES   OF   THE  JURY  79 

order,  choosing  as  their  leader  one  who  knows 
the  way  that  they  would  fly. 

We  love  our  courts  and  speak  of  them  in  terms 
of  praise ;  our  constitution  we  believe  a  shield 
which  none  can  pierce  to  take  away  our  rights. 
We  pass,  amend  and  supplement  our  laws,  striv- 
ing to  make  each  line  the  voice  of  justice.  But 
what  are  constitutions,  courts  or  laws,  when 
those  who  sit  in  judgment  know  them  not  and 
have  no  skill  to  fit  them  to  the  facts,  who  pass 
on  suits  impulsively  as  careless  children  handle 
guns,  having  no  skill  to  aim,  but  shoot  at  ran- 
dom, hitting  anyone  who  happens  in  the  way. 


CHAPTER  IX. 


Firmness. 


The  verdict  must  be  found  by  all  the  jurors. 
Each  must  endorse  it  as  his  own  true  judgment. 
This  he  should  do  in  honest  faith,  because  he  so 
believes  from  all  the  facts.  If  he  instead  gives 
up  his  judgment  to  his  fellow  jurors,  if  weary 
of  the  long  dispute  and  bitter  wrangling  he  at 
last  consents  to  sign  a  compromise  not  squaring 
with  his  personal  judgment  he  thus  deserts  his 
post;  he  brings  a  si)urious  i)roduct  into  court 
and,  by  a  falsehood  uttered  for  the  purpose,  has 
it  recorded  as  a  legal  verdict.  A  juror  should 
have  moral  fibre  that  (luails  not  under  opposi- 
tion, but  calmly  hears  and  weighs  with  patience 
and  holds  his  ground  until  nev*^  reasons  con- 
vince him  he  should  change.  If  this  he  has  not, 
he  is  not  a  juror  such  as  the  law  intends,  but 
merely  a  clay  dummy,  which  other  hands  may 
mould  as  they  desire.  Yet  he  is  counted  to 
make  the  panel,  supposed  to.  have  twelve  men. 
This  fraud  the  courts  might  not  endorse  could 
it  be  shown,  but  like  a  secret  poison  mixed  with 

80 


FRAILTIES   OF  THE  JURY         81 

food  the  spurious  dose  appears  a  legal  verdict, 
and  so  is  swallowed  and  does  its  vicious  work 
without  detection.  Most  men  do  not  possess  this 
moral  fibre.  They  yield  to  win  the  good-will  of 
the  crowd.  How  many  vote  for  unfit  men  to 
please  their  friends?  How  many  break  their 
sacred  ties  and  put  aside  the  claims  of  conscience 
to  gain  the  title  of  good-fellowship?  Few  can 
be  trusted  to  handle  wealth  of  others  or  their 
own,  because  they  lack  the  courage  to  refuse 
the  many  who  would  borrow.  Heads  sound  and 
sane  in  many  ways  are  often  soft  in  this.  They 
drop  the  jewels  that  are  genuine  and  choke  the 
righteous  throbs  of  conscience  that  they  may 
chase  the  butterflies  of  present  favor,  and  gather 
glittering  gewgaws.  Let  me  present  one  of  the 
best  of  these : 

Jeremiah  Jellyfish. 
He  was  in  youth  instructed  in  the  best  of 
schools  and  made  familiar  with  all  moral  pre- 
cepts. He  was  a  model  son  of  model  parents, 
taught  in  the  lore  of  all  the  ages,  and  filled  with 
all  the  facts  of  modern  science.  His  were  the 
graces  that  adorn  the  cultured,  the  arts  and 
manners  of  gentility  that  pass  as  current  coin 
at  every  counter.  Nature  had  blessed  him  with 
much  manly  beauty.     In  form  and  face  he  was 


82  FRAILTIES   OF   THE   JURt 

a  model  fit  for  a  statue  of  a  Grecian  god.  A 
noble  brow  adorned  with  chestnut  curls,  a  beard 
that  Mars  might  envy,  eyes  bright  with  quick 
intelligence,  yet  beaming  tender  sympathy,  a 
skin  as  white  as  milk  save  where  the  hue  of 
health  flushed  his  full  lips.  Tall  and  erect  he 
stood  among  his  fellow-men  and  looked  like  one 
made  by  the  hand  of  Nature  to  command  and 
lead  mankind  from  darkness  into  light.  Nor 
were  his  fine  proportions  made  to  mask  a  mental 
weakling.  His  mind  was  broad  and  comprehen- 
sive as  his  noble  brow.  Memory  held  her  place 
and  did  most  perfect  work.  Reason  was  ever 
active  and  quickly  grasped  effects  and  causes 
in  their  proper  sequence.  And  far  above  the  whole 
a  well-instructed  conscience  sat  and  watched  the 
compass  pointing  to  the  right.  His  heart  was 
warm  for  others'  woes;liis  hand  outstretched  to 
render  aid.  Firmly  he  held  himself  upon  the 
narrow  path  of  personal  purity,  yet  looked  with 
charity  and  love  on  all  who  took  the  broad  and 
downward  road  to  vice  and  crime.  So  general 
was  his  kindly  sympathy  that  all  accounted  it  a 
privilege  to  have  his  company.  He  spoke  the 
right  word  in  the  proper  place  and  did  the  fit 
thing  when  the  time  arrived.  He  mingled  with 
the  grave  and  gay  and  was  enjoyed  by  all.    No 


FRAILTIES   OF   THE  JURY  83 

liquor  ever  touched  his  lips,  and  yet  among  the 
drinking  and  the  drunk  he  found  warm  welcome. 
His  character  for  morals  bore  no  stain  and  yet 
the  vicious  oft  invited  him  and  at  their  orgies 
found  his  presence  no  reproof.  A  church  of 
orthodox  belief  held  him  a  member  of  a  high 
repute;  meanwhile  he  counted  as  his  dearest 
friends  agnostics  of  the  strongest  kind.  In  poli- 
tics he  bore  a  public  part,  aiding  with  voice  and 
pen  the  party  of  his  choice,  but  kept  his  words 
so  free  from  bitterness  that  none  opposed  by 
him  felt  enmity.  Employers  and  employed  oft 
waged  a  bitter  war.  Each  asked  his  aid.  He 
spoke  as  he  believed,  and  those  he  spoke  against 
loved  him  no  less,  so  soft  and  gentle  were  his 
words  and  moderate  were  his  views.  In  all 
things  was  he  blessed.  Health,  wealth,  domestic 
peace,  were  his  in  fullness.  His  neighbors,  city, 
state  and  country  held  him  in  high  esteem  and 
took  delight  to  do  him  honor.  Fortune  turned 
ever  toward  him  her  sweetest  smile  and  showered 
on  him  her  richest  bounties.  Such  are  the  bless- 
ings sometimes  won  by  easy  grace  and  prudent 
conduct  when  skillfully  employed  by  one  en- 
dowed by  Nature  with  a  shining  front. 

This   rare   and   radiant   man   was   sometimes 
summoned  on  a  jury.     How  did  his  heavenly 


g4         FRAILTIES   OF   THE  JURY 

plumage  fit  the  jury  box?  The  evidence  he  un- 
derstood, and  court's  instructions,  and  all  the 
points  brought  out  in  argument  he  easily  dis- 
cerned, his  memory  carried  well  the  load  until 
the  jury  room  -was  reached,  and  there  he  listened 
patiently  to  all  his  fellow- jurors  had  to  say  and 
modestly  expressed  his  own  opinion.  He  had 
no  bias  or  wish  to  favor  either  side,  and  formed 
a  judgment  on  the  facts  presented,  in  strict 
accordance  with  the  law,  as  given  by  the  court. 
And  such  had  been  his  verdict,  but  his  fellow- 
jurors  were  moved  by  other  motives.  Inflamed 
to  fever  by  the  closing  speech  they  had  forgotten 
many  facts  and  many  others  misremembered, 
and  disregarding  all  the  court 's  instruction,  they 
were  in  haste  to  find  a  verdict,  written  by  their 
indignation.  This  wise  man  sought  to  stay  their 
haste  and  call  them  to  the  bar  of  reason,  but 
found  the  effort  vain.  Their  minds  were  set 
against  the  ground  he  took.  He  then  tried  sev- 
eral times  to  compromise  and  bring  the  others 
to  him.  He  found  them  quite  unyielding,  but 
finally  they  moved  a  little  way  and  he  then  went 
the  rest  and  drank  the  bitter  draught  that  they 
had  mixed  for  him.  Then  with  them  went 
before  the  court  and  solemnly  declared  this 
base  child  of  their  bias  was  an  offspring  of  his 


FRAILTIES   OF   THE  JURY  85 

judgment.  Thus  was  the  law's  intention  set 
aside  because  this  man  of  noble  parts  was  lack- 
ing in  the  moral  strength  to  stand  by  his  own 
judgment.  There  frequently  are  jellyfish  found 
on  the  jury,  but  rarely  have  they  such  a  mental 
grasp.  In  many  walks  of  life  they  fill  their 
places  well  and  in  the  march  of  human  progress 
give  great  aid,  but  on  the  jury  they  become 
poor  timber,  likely  to  warp  or  break  when 
strength  is  most  required.  For  this  they  offer 
many  reasons.  Sometimes  they  urge  expenses 
of  another  trial  would  put  the  party  plundered 
in  a  worse  condition ;  sometimes  predict  another 
jury  would  go  further  still  in  the  wrong;  oft- 
times  they  put  the  blame  upon  the  losing  lawyer 
for  not  excusing  certain  jurors.  When  conscious 
guilt  needs  badly  an  excuse,  none  is  too  thin  for 
service  as  its  cloak.  The  jurors  who  desert  the 
post  of  duty  for  bribes  or  fear  or  lack  of  moral 
strength,  show  often  in  their  faces,  when  they 
hear  the  verdict  read  the  signs  of  their  debase- 
ment; they  hang  their  heads  in  shame  or  carry 
them  too  proudly,  and  when  they  answer  to  the 
tisual  questions  asked  they  either  speak  too  low, 
in  sneaking  accents,  or  else  in  tones  of  loud  de- 
fiance, covering  their  guilty  tracks  with  hum- 
mocks, that  easily  are  seen. 


CHAPTER  X. 


Talesmen. 


Jurors  drawn  to  make  the  panel  are  sum- 
moned to  the  court  and  there  attend  for  several 
weeks  to  try  such  cases  as  require  a  jury.  Those 
are  the  regular  panel.  When  for  any  cause 
more  jurors  are  required  the  sheriff  summons 
persons  sitting  in  the  court  to  act  as  jurors,  or 
goes  out  and  summons  men  he  finds  at  work 
or  on  the  street.  These  are  denominated  "tales- 
men." 

The  power  to  pick  these  talesmen  for  the 
cause  is  quite  important  to  the  sheriff.  Some- 
times he  uses  it  to  help  his  friends  who  seek 
employment  on  the  jury;  sometimes  to  get  the 
kind  of  jurymen  a  certain  party  may  desire. 
The  sheriff  rarely  does  the  work  himself;  his 
deputy,  known  as  a  bailiff,  performs  the  task. 
This  practice  has  produced  a  type  of  juror  call- 
ed ''professional,"  and  thereby  some  succeed 
in  getting  many  years  of  jury  service. 

There  is  a  city  in  my  native  state  to  which 
my  mind  with  loving  memory  turns.     She  sits 

86 


FRAILTIES   OF  THE  JURY  87 

in  majesty  on  gentle  hills  where  two  bright, 
softly  flowing  rivers  blend.  Her  people  hold  the 
highest  rank  for  moral  worth  and  high  ideals, 
and  her  many  courts  for  probity  and  lore  are 
famed.  Her  bar  maintains  the  loftiest  seat  for 
learning  and  professional  skill — and  rarely  has 
corruption  reached  her  court  or  juries  with  its 
slim.y  hand.  Here  many  years  the  writer  prac- 
ticed law.  Here  talesmen  often  occupied  the 
jury-box. 

A  man  who  once  resided  there  was  absent 
from  the  city  many  years.  On  his  return  great 
changes  had  occurred.  He  saw  paved  streets 
where  formerly  were  swamps  and  mansions  of 
rare  beauty  sat  upon  the  hills  that  had  been 
barren  when  he  went  away.  Large  business 
blocks  displaced  the  shacks  that  stood  along  the 
thoroughfares.  A  splendid  court  house  took  the 
place  of  shabby  ruins  on  the  public  square,  and 
on  that  hill  where  once  a  shattered  state-house 
stood,  he  found  a  gorgeous  capitol  raising  on 
high  its  golden  dome.  Where'er  he  went  he 
noted  many  changes  and  did  not  fCel  at  home, 
until  he  came  into  the  court  and  there  found 
the  selfsame  men  upon  the  jury,  as  on  the  day 
he  left. 

Looking  down  the  vista  of  the  years  I  still 


88  FRAILTIES   OF   THE  JURY 

recall  some  faces  that  I  saw  before  me  on  the 
jury  when  I  practiced  there.  I  seldom  missed 
them  from  the  court.  They  were  of  that  pe- 
culiar type  that  much  abounds  where  talesmen 
are  in  use.  This  I  will  try  to  sketch  by  putting 
forward  my  old  friend 

Waverly  Weathercock. 

He  was  a  modest,  unassuming  man,  with  noth- 
ing very  good  or  bad  about  him.  His  parents 
had  been  well  to  do,  but  w'ith  advancing  years 
their  means  decreased  and  then  he  came  to 
want.  He  had  been  educated  well,  but  when 
he  tried  to  get  a  place  to  earn  his  livelihood  he 
found  it  very  difficult  because  he  had  not  learn- 
ed a  trade  and  had  no  skill  for  any  special  work. 
The  gentle  tasks  that  he  could  get  to  do  lasted 
not  long  nor  did  they  bring  much  pay ;  he  had  a 
constant  strain  to  keep  himself  afloat  in  that 
swift  moving  social  sea  where  he  was  wont  to 
swim. 

He  met  and  loved  a  girl  whose  parents  also 
had  been  well  to  do.  She  had  good  taste  and 
many  wants,  but  she  had  learned  to  fit  them 
to  her  purse,  and  when  these  two  were  wed, 
they  made  a  shift  to  live  the  best  they  could. 
She  rented  rooms,  served  meals  and  did  such 


FRAILTIES   OF   THE  JURY  89 

fancy  work  as  she  could  find  employment  for, 
and  thus  in  many  ways  assisted  to  sustain  the 
home. 

He  worked  about  the  house,  helped  her  to 
wash  and  clean,  and  cook  and  mend,  relied  on 
her  to  think  and  plan  and  acted  as  her  general 
errand  boy.  Thus  did  they  manage  to  exist  and 
make  a  good  appearance  on  the  meagre  sum 
which  jointly  they  acquired,  but  nothing  could 
they  save  for  feeble  age.  They  read  the  public 
library  books,  the  latest  magazines  upon  its 
shelves,  and  took  a  daily  paper,  and  in  that  way 
kept  in  touch  with  the  doings  of  the  world.  They 
made  associates  of  the  cultured  class — talked 
much  of  poetry  and  art — and  held  a  place  as 
critics  in  the  literary  world.  They  found  no 
fault  with  their  pinched  lot  and  always  seemed 
content,  and  made  a  mimic  show  that  well  con- 
cealed the  pressing  needs  that  vexed  them  con- 
tantly.  Thus  sped  the  years  till  he  had  passed 
his  prime,  and  was  no  longer  fitted  for  the  lit- 
tle tasks  which  once  he  did,  and  had  no  fitness 
then  for  greater  ones.  He  drew  no  pension 
from  the  government,  nor  had  he  claim  on 
any  public  fund,  except  perhaps  a  refuge  at  the 
poor-house  the  county  kept  for  all  its  indigent. 
His  claim  on  this  he  did  not  care  to  make,  so 


90  FRAILTIES   OF   THE  JURY 

as  a  last  resort  to  drive  away  the  wolves  of  want, 
he  hung  about  the  court,  and  sought  a  place  as 
talesman  on  the  jury.  The  sheriff  was  his 
friend,  and  wished  to  favor  him  in  every  way 
he  could,  so  when  talesmen  were  needed  to  fill 
up  the  box,  this  needy  gentleman  was  chosen. 
He  always  testified  that  he  was  qualified.  He 
never  had  an  interest  in  the  ease,  nor  had  he 
heard  of  it  before.  He  was  without  the  slight- 
est bias  on  the  subject  matter,  and  had  no  wish 
to  aid  or  injure  either  party,  and  so  he  seemed 
an  ideal  juror,  and  rarely  was  he  challenged 
or  removed.  He  listened  patiently  to  all  pro- 
ceedings and  understood  them  better  than  the 
average  juror,  and  kept  his  mind  in  equipoise 
until  the  evidence  was  in,  and  when  the  jury 
were  in  consultation  to  settle  on  the  verdict 
they  should  find,  he  seldom  spoke  or  ventured 
an  opinion,  but  voted  without  a  word  the  secret 
ballot.  He  kept  with  the  majority  and  signed 
the  verdict  that  they  wished.  He  had  no  force 
to  stand  by  his  opinion.  His  poverty  made 
him  as  yielding  here  as  he  had  ever  been  through 
life.  He  did  not  dare  to  hang  the  jury  or  re- 
fuse to  take  the  way  the  largest  number  went, 
lest  he  might  lose  his  chance  to  sit  again.  Thus, 
he  was  little  worth    and    scarcely  earned  the 


FRAILTIES   OF  THE  JURY         91 

little  money  paid  for  his  weak  service.  When 
the  verdict  was  announced  he  sought  the  party 
who  had  lost  the  case  and  told  him  he  had  done 
his  best  to  get  a  verdict  in  his  favor,  but  all 
the  other  jurors  were  opposed.  This  also  did 
he  tell  the  losing  lawyer  and  so  did  curry  favor 
where  he  could,  paving  the  way  for  further 
jury  service.  In  this  way  he  for  many  year.« 
kept  from  the  almshouse  by  the  sums  he  earned 
from  sitting  on  the  jury. 

In  justice  courts  the  jurors  all  are  talesmen 
brought  by  the  constable  out  of  the  street,  oj: 
taken  from  loungers  in  the  court.  In  some 
states  the  laws  require  that  they  be  paid  by 
him  who  asks  a  jury.  The  sum  required  for 
this  is  placed  in  court  before  jurors  are  required 
to  sit.  "When  this  is  done  the  officer  ofttimes 
exacts  a  promise  that  they  will  find  for  him 
whose  money  pays  the  fees,  and  justice  jurors 
in  the  larger  cities  are  often  of  such  timber 
that  any  constable  can  bend  them  to  his  pur- 
pose. The  party  paying  for  the  jury  rarely 
fails  to  get  the  verdict,  if  one  is  found.  In 
other  states  the  jury  fees  in  justice  courts  are 
taxed  as  costs,  and  when  the  costs  are  paid  the 
fees  are  given  to  the  jurors,  and  if  not  paid 
the  jurors  get  no  fees.     Where  laws  like  these 


92  FRAILTIES   OF   THE  JURY 

prevail,  the  jury  often  ascertains  which  party 
can  be  made  to  pay  the  fees,  then  beat  him  in 
the  suit  to  get  their  pay. 

The  writer  knew  a  case  in  such  a  court  where 
quite  unmindful  of  their  fees  a  jury  found 
their  verdict  against  the  party  who  had  no 
means.  AVhen  they  brought  their  verdict  into 
court  the  venal  justice  chidingly  exclaimed, 
"See  what  you've  done.  How  can  we  ever  get 
our  fees  ? ' '  Such  is  the  mart  in  which  all  forms 
of  legal  justice  is  so  cheaply  bought  and  sold. 
There  doubtless  are  exceptions  and  sometimes 
honest  juries  are  obtained  of  talesmen,  even  in 
justice  courts,  and  jurors  sometimes  cast  aside 
their  own  advantage  and  stoutly  stand  for  right 
and  duty.  But  so  uncertain  is  the  hope  that 
they  will  keep  this  path  that  few  have  faith 
in  such  a  verdict  as  representing  law  or  jus- 
tice. Jurors  are  rarely  summoned  in  large 
cities  to  sit  in  justice  courts,  unless  the  party 
knows  his  case  is  bad  and  thinks  it  worth  the 
cost  of  paying  for  a  jury  to  make  the  other  side 
appeal. 

Jurors  should  be  composed  of  men  whose 
Avorth  so  far  transcends  the  little  sum  that 
comes  from  jury  service  that  such  considerations 
can  cause  no  bias  in  their  minds.     The  law  that 


FRAILTIES   OF   THE  JURY         93 

places  squalor  in  the  box  and  bribes  the  empty 
handed  jurors  to  find  a  verdict  of  a  certain  kind 
that  they  may  get  their  pay,  reaches  the  highest 
point  of  folly,  and  is  in  keeping  with  all  the 
other  features  of  this  stupid  system. 


CHAPTER  XI. 


Aggregated. 


Herein  have  I  considered  many  jurors,  set 
dawn  some  faults  that  brand  them  as  unfit,  and 
tried  to  show  the  weakness  of  the  many  links 
which  form  the  chain.  Now  let  us  test  the  chain 
itself  and  see  if  it  is  stronger  than  these  several 
links.  Some  may  contend  that  taken  as  a  whole 
the  jury  has  the  strength  of  all  its  parts  and 
that  the  verdict  which  they  jointly  find  will 
represent  the  added  strength  of  each;  that  all 
the  character,  skill,  intelligence  and  wide-expe- 
rience possessed  by  each  will  be  combined  into 
a  compound  equal  to  the  sum  of  all  the  several 
parts.  This  notion  may  possess  a  fair  outside, 
but  being  inward  searched  with  close  analysis 
will  prove  unsound.  Such  graces  of  the  mind 
can  not  be  added.  Each  soul  stands  by  itself. 
Its  virtues  can  not  be  transferred  by  simple 
mathematics.  'Tis  said  some  statisticians  wish- 
ed to  cross  a  stream  and  finding  out  its  depth 
at  either  side  and  in  its  middle  from  one  who 
knew  it  well,  they  ascertained  the  average  was 


FRAILTIES   OF  THE  JUBY         95 

below  their  stature  and  thus  concluded  they 
could  ford  the  stream.  They  attempted  it  and 
they  were  drowned.  Their  figures  were  correct 
but  not  in  application  to  the  stream.  It  had  no 
average  depth  but  was  to  them  as  deep  as  in 
its  deepest  part.  No  quantity  of  knaves  can 
make  an  honest  man,  no  sum  of  fools  a  sage  in 
wisdom.  In  counsel  it  is  said  that  there  is 
safety.  The  truth  of  this  depends  upon  the 
qualities  of  those  who  thus  consult.  If  they 
are  rogues  who  plot  for  fraud  or  crime  there  is 
no  safety  for  their  victims.  If  they  are  imbe- 
ciles the  combination  of  all  their  follies  will  have 
no  attributes  of  wisdom.  'Tis  true  the  jury  may 
consult  together  and  each  impart  some  knowl- 
edge to  the  others,  and  thus  the  sum  of  all  be 
made  the  greater.  Here  all  addition  ceases,  for 
in  the  end  each  juror  should  the  verdict  base 
on  his  own  judgment.  This  verdict,  therefore, 
can  not  rise,  when  all  tides  are  in  flow,  above 
the  stature  of  the  highest  juror.  This  is  the 
loftiest  mark  that  ever  is  attained  and  never  is 
this  reached  on  any  controverted  question  un- 
less the  weaker  minds  and  wills  of  the  others 
are  made  subservient  to  the  best  man  on  the 
jury.  Most  verdicts  fall  below.  The  wise 
and    fair,    in    small    proportion    to    the    other 


96         FRAILTIES   OF   THE  JURY 

jurors,  must  yield  to  ignorance  and  brutal 
bias  or  else  no  verdict  is  secured.  This  some- 
times is  a  mere  surrender,  delivering  arms 
and  baggage  to  the  opposition  and  making 
no  conditions,  but  usually  it  is  a  treaty 
which  compromises  for  a  part  of  that  which 
conscience  claimed  as  due.  The  plaintiff,  not 
entitled  to  recover,  receives  the  major  portion 
of  his  spurious  claim;  the  one  whose  cause  is 
just  receives  a  fraction  only  of  his  due.  This 
counterfeit  of  justice  comes  as  the  final  product 
of  a  bitter  wrangle  where  many  speak  at  once 
and  more  than  once,  using  coarse  epithets  and 
vulgar  threats,  charging  corruption,  bias,  and 
the  worst  of  motives.  Factions  are  formed  among 
the  jurors,  led  by  the  hottest-headed  on  each  side. 
These  shout  and  swear  and  threaten  and  berate, 
and  with  a  view  of  final  compromise  each  fac- 
tion makes  the  most  prepasterous  claims.  This 
conflict  is  protracted  until  a  stage  of  weariness 
is  reached  where  memory  is  almost  a  blank. 
Then  by  ignoring  law  and  evidence  and  all 
opinions  they  have  formed  therefrom  the  jurors 
sign  a  compromise  which  all  agree  to  call  a  ver- 
dict. Thus  in  the  end  brute  force  becomes  the 
victor  as  in  the  days  when  suitors  tried  their 
suits  by  battle.     Each  champion  beat  the  other 


FRAILTIES   OF   TEE  JURY  97 

with  a  stave  of  wood  and  he  who  first  succumbed 
was  then  adjudged  as  in  the  wrong. 

In  jury  trials  as  they  are  conducted,  the 
suitors  now  appear  by  substitutes.  No  loager 
staves  of  wood  decide  the  contest,  but  words 
quite  as  offensive  strike  the  ears,  break  down 
the  stubborn  wills  and  make  the  weaker  yield. 
Thus  one  bold  juror,  made  noisy  by  the  bribe 
that  hired  him  to  decide  the  question  wrong, 
may  force  the  honest  members  of  the  jury  to 
come  to  his  position  or  prevent  a  verdict,  and 
defeat  the  object  of  the  trial.  Most  bribes  are 
given  by  defendants,  who  putting  forward  sham 
defenses  are  pleased  to  block  the  wheels  of  jus- 
tice and  by  delay  at  last  defeat  the  honest 
claim.  Thus  in  the  strength  to  find  an  honest 
verdict  the  aggregated  lengths  of  this  judicial 
chain  are  no  whit  stronger  than  its  weakest  link. 

The  author  never  sat  upon  a  jury  and  hence 
his  facts  are  hearsay,  when  applied  to  tell  the 
secret  workings  of  this  body.  The  emanations 
from  a  secret  chamber  may  give  sure  hints  of 
what  takes  place  within.  Foul  odors  fly  not 
out  from  flower  beds  where  only  roses  bud  and 
bloom.  Vile  epithets  with  coarse  and  boister- 
ous clamors  rerely  salute  the  ears  from  happy 
homes.     The  exhalations  from  a  jury  room  so 


98  FRAILTIES   OF   THE  JURY 

far  as  one  can  hear  who  stands  outside  are  not 
assuring  of  delibei-ation,  and  cause  less  hope 
for  justice  than  distrust.  For  many  years  the 
author  has  attempted  to  ascertain  from  jurors 
when  discharged  the  leading  reasons  for  their 
verdict,  both  in  his  cases  won  and  eases  lost.. 
He  thus  has  had  more  than  a  hundred  answers, 
and  of  the  many  can  not  now  recall  a  single 
one  that  ought  to  be  a  reason,  or  did  not  violate 
the  court's  instructions.  Here  are  a  few  that 
well  may  serve  as  samples  for  the  others.  In  a 
suit  brought  by  a  widow  for  her  husband's 
death,  caused  by  a  street  ear  striking  him,  she 
was  defeated,  and  the  reason  given  was  that 
she  had  collected  much  insurance  which  she  had 
placed  upon  his  life  and  therefore  had  sustained 
no  loss.  Another  case  brought  for  an  injury  to 
the  head  resulting  in  paresis:  the  claimant  met 
defeat  and  this  is  the  reason  as  stated  by  a 
juror:  another  person  whom  the  juror  knew 
once  had  a  harder  blow  upon  the  head  and  did 
not  have  paresis.  In  many  suits  brought  by  de- 
positors of  a  bankrupt  bank  against  defendants 
who  had  once  been  partners  in  the  bank  and  had 
retired,  the  question  was  whethei*  the  plaintiffs 
knew  these  partners  had  left  the  bank  when 
making  their  deposits,  or  had  they  actual  notice 


FRAILTIES   OF   THE  JURY  99 

that  the  change  was  made?  The  plaintiffs  had 
executed  many  checks  bearing  the  new  firm 
name,  deposited  on  blanks  with  its  recital,  and 
had  deposits  entered  in  a  book  containing  it  in 
large  black  letters,  yet  in  nine  cases  out  of  ten 
defendants  were  defeated  and  the  reasons  given 
were  in  most  cases  these :  Some  said  they 
thought  defendants  had  a  bond  to  keep  them 
free  from  loss ;  and  others,  that  they  should  have 
taken  one  when  they  retired.  A  few  spoke  of 
the  plaintiffs'  poverty  and  of  defendants'  riches, 
and  the  sum  defendants  made  in  selling  out. 

A  lawyer  claimed  $2,000.00  for  a  fee.  The 
issue  was  the  amount.  I  saw  a  statement  of  the 
ballots"  taken.  One  juror  fixed  the  sum  at  $50 
and  one  $2,000;  some  said  $500.  Some  put  the 
sum  at  less  and  others  more,  and  after  nineteen 
ballots  had  been  taken  nine  hundred  dollars  was 
the  sum  agreed.  The  one  who  voted  fifty  dollars 
gave  me  the  facts  and  said  he  still  believed  the 
sum  he  fixed  sufficient,  yet  signed  the  verdict 
to  save  expenses  of  another  trial. 

Often  the  jury  add  the  sums  suggested  by 
the  several  jurors  and  then  divide  the  amount 
by  twelve  and  take  the  quotient  as  their  ver- 
dict.   Thus  do  they  mix  their  several  judgments 


100        FRAILTIES   OF   THE   JURY 

ill  a  kettle  and  stirring  it,  dip  out  a  one-twelfth 
part  and  call  it  justice. 

If  every  juror  gave  a  written  reason  for  that 
strange  compound  which  is  called  a  verdict,  and 
wrote  that  reason  without  aid  the  general  pub- 
lic would  be  so  disgusted  that  they  would  rise 
against  the  jury  system. 

But  all  sit  silent  while  the  case  is  tried. 
]\Iany  have  high-browed  heads  and  look  quite 
wise,  and  what  is  done  when  making  up  their 
verdict  is  veiled  in  mists  of  secrecy,  and,  thus 
disguised,  their  ignorance  is  hid,  and  when  at 
last  they  come  before  the  court  and  solemnly  de- 
clare a  certain  verdict  to  be  their  well-consid- 
ered, combined  judgment  the  public  by  their 
fair  appearance  are  hoodwinked  and  induced  to 
trust  the  jury  system.  If  they  could  only  see 
behind  the  veil  that  hides  the  ugly  features  of 
this  false  prophet  who  claims  to  have  transcend- 
ent beauty,  the  cheat  would  be  discovered  and 
his  duped  admirers  would  put  him  out  of  busi- 
ness. 

The  thought  that  fortunes,  liberty  and  life 
are  held  by  such  a  tenure  that  all  may  lose  them 
at  the  whim  of  such  as  may  compose  a  jury 
should  stir  us  into  action  and  demand  a  system 
more  in  accord  with  reason. 


CHAPTER  XII. 


Effects. 


The  frailties  herein  pointed  out  have  much 
effect  upon  the  suitors,  lawyers  and  the  public. 
The  preacher  writes  his  sermons  for  his  flock; 
a  journal's  readers  guide  the  writer's  pen;  buy- 
ers select  the  merchant's  stock,  and  those  who 
lined  the  avenue  have  caused  the  gay  parade. 
In  this  way  does  the  jury  shape  the  lawyer's 
course;  he  crooks  his  knees  and  twists  to  win 
their  favor,  he  strives  to  take  advantage  of 
their  faults  that  he  may  win  a  verdict  for  his 
client.  If  he  appeals  to  motives  that  are  base, 
he  deems  the  jury  governed  by  such  motives, 
thus  indirectly  is  the  bar  debased.  All  methods 
urged  for  better  ethics  at  the  bar  will  fall  far 
short,  while  juries  are  composed  of  men  whose 
minds  are  swayed  by  vicious  pleas.  Judges 
may  preach  and  writers  write  and  both  may 
paint  upon  the  heavens  the  lustrous  image  of 
eternal  truth  and  beg  all  lawyers  to  bow  down 
before  it.  While  there  abides  a  law  that  fills 
the  jury  box  with  baby  minds,  with  whom  a  lie 

101 


'i\)2        FR/i/i/iHf^^   OF   THE  JURY 

iS  i-oU-nt  a^  :the -t^iith,  their  labors  Avill  have 
l)Oor  success.  Some  hiwyers  still  will  falsify 
the  facts,  make  pleas  of  lying  fabrics  and  bring 
forth  to  touch  the  juror's  sympathetic  nerves, 
a  mass  of  matter  not  in  evidence.  Suitors  anx- 
ious for  success  will  seek  such  lawyers  for  their 
'advocates  and  let  the  truthful  starve.  The 
fickle  public  praising  him  who  wins  will  wink 
and  smile  approvingly.  Not  till  the  jury  box 
is  purged  of  minds  untrained  and  subject  to 
such  pleas,  will  there  be  hope  to  purify  the  bar. 
Now  take  the  loss  the  suitors  suffer  because 
of  frailty  in  the  jury  box.  A  jury  trial  is  a 
game  of  chance  where  he  who  wins  must  often 
lose  by  winning,  verdicts  obtained  are  set  aside 
because  against  the  evidence,  and  thus  the  case 
is  often  tried  again,  until  the  substance  of  the 
final  judgment  is  wasted  in  the  costs  of  many 
trials.  Ofttimes  the  case  goes  to  a  higher  court 
and,  there  reversed,  comes  back,  is  tried  again 
before  another  jury,  again  appealed,  reversed 
and  tried  again,  and  thus  the  shuttle  goes  from 
court  to  court  and  then  returns  and  makes 
another  trip,  weaving  a  shroud  of  loss  for  every 
party  to  the  suit.  Ten  years  are  often  spent 
before  a  suit  reaches  a  final  judgment,  when  two 
had  been  sufficient  if  the  jury  who  tried  it  first 


FRAILTIES   OF   THE  JURY        103 

had  all  been  fit.  And  when  the  final  verdict 
has  been  rendered,  it  rarely  has  a  just  appear- 
ance, the  product  is  a  compromise  which  gives 
the  suitor  but  a  part  of  what  he  justly  claims 
as  due,  or  gives  him  judgment  for  a  claim  that's 
false.  The  courts  grow  weary  of  the  many  trials, 
despair  of  justice,  and  in  the  end  allow  the 
verdict  most  unjust  of  all  to  stand.  The  suitor 
for  the  honest  claim  then  counts  the  sum  of 
trouble  he  has  had,  the  years  of  anxious  care 
and  large  expense,  and  chides  himself  that  he 
did  not  consent  to  being  robbed  without  the 
jury's  aid.  Nor  is  this  all:  the  suitor  winning 
on  a  spurious  claim  gives  hope  to  many  knaves 
of  like  success  and  suits  are  brought  by  thou- 
sands who  possess  no  rights  to  found  them  on 
and  sham  defences  frequently  are  plead,  and 
thus  defendants  are  oppressed  with  unjust  suits 
and  plaintiffs  have  their  honest  claims  delayed, 
because  of  hope  that  a  jury  will  go  wrong; 
upon  the  other  hand,  a  multitude  of  honest 
claims  are  never  sued,  claimants  preferring  to 
lose  the  whole,  rather  than  go  to  great  ex- 
pense and  lose  the  greater  part.  Such  are 
the  loss,  expense,  distrust  and  disappoint- 
ments brought  to  suitors  in  civil  suits  by  jury 
faults.      But    these    are    small    when    matched 


104        FRAILTIES   OF   THE  JURY 

against  the  loss  tliat  follows  prosecutions 
bronglit  for  crime.  If  the  case  is  one  of 
general  notoriety,  the  getting  of  a  jury  is  a  task 
prodigious,  weeks  and  often  months  drag  on 
in  weary  pace,  while  judge  and  lawyers  strive 
to  get  a  jury  in  tlio  box;  thousands  are  sum- 
moned from  their  tasks  of  toil,  brought  to  the 
court  and  thei'e  examined  and  if  perchance  some 
]-umor  tlying  on  uncertain  wing  has  reached 
their  ears  and  lodged,  'tis  feared  their  simple, 
untrained  minds  have  thus  been  biased  and 
hence  they  are  excused  and  thousands  more  are 
summoned.  This  slow  proceeding  wastes  the 
public  funds,  depletes  the  means  of  those  ac- 
cused and  causes  losses  to  the  many  men  thus 
summoned  to  the  court,  and  when  the  jury  is 
procured  by  all  this  mighty  labor,  it  is  so  weak 
and  frail  it  may  convict  the  innocent  on  mere 
suspicion  or  be  cajoled  by  advocates  to  let  the 
guilty  go.  The  public  pays  enormous  bills  for 
costs  made  necessary  by  such  trials,  when  all 
the  points  in  issue  could  be  better  tried  with 
slight  expense,  if  done  without  a  jury,  or  the 
law  had  planned  a  jury  of  men  well  trained  for 
jury  service.  The  public  and  the  private  loss 
might  be  endured  without  complaint  and  all 
its  victims  well  might  smile  if  by  the  sacrifice 


FRAILTIES   OF   THE  JURY        105 

the  precious  boon  of  justice  were  procured. 
Such,  alas,  is  not  the  case — the  jurors  chosen  are 
so  unfit  to  do  the  work  intrusted  in  their  hands 
that  all  the  burdens  laid  on  them,  on  suitors 
and  the  public  are  worse  than  wasted  because 
their  verdicts  are  but  cloaks  which  hide  oppres- 
sion in  the  guise  of  justice.  So  court  expenses 
have  become  prodigious  and  yet  wax  greater 
every  passing  year,  and  like  a  cancer  at  the 
nation's  vitals,  gnaw  deep  and  wide,  threaten- 
ing a  speedy  ruin.  Murder  keeps  up  its  car- 
nival of  bloody  riots;  thieves  of  all  kinds  now 
ply  their  wicked  trades;  and  every  kind  of 
crime  thrives  unmolested;  while  courts  groan 
on  their  slowly  moving  wheels,  years  behind  the 
criminal  procession.  The  tools  of  burglars  have 
been  much  improved  and  implements  of  crime 
reached  high  perfection,  and  yet  the  mode  of 
trying  criminal  cases  has  made  no  progress  since 
the  Pilgrims  landed.  The  system  first  devised 
to  fit  the  wants  of  feudal  Engliand  when  laws 
were  few  and  population  scarce  and  men's  chief 
fear  the  encroachments  of  the  Crown,  we  still 
have  with  us  as  it  stood  when  much  of  Britain 
was  a  wilderness.  Genius  has  filled  the  world 
since  then  with  countless  gifts  to  bless  man- 
kind.    Invention's  wand  has  touched  the  seas; 


106        FRAILTIES   OF   THE  JURY 

wiiorc  once  frail  sail  boats  loitered  on  their  tedi- 
ous way,  wooing  uncertain  gales  to  give  them 
speed,  now  many  mighty  steamships  swiftly 
plow  the  main,  carrying  the  ocean  commerce  of 
the  world.  "Where  once  the  sluggish  oxen  drew 
the  creaking  wain  along  a  rocky  road  and  by 
the  urging  of  the  driver's  whip  might  cross  one 
township  in  a  drowsy  day  and  carry  a  little 
load  to  town,  now  flying  trains  inspired  by  fhinie 
and  steam  and  drawn  by  limbs  of  steel  can 
make  a  thousand  miles  from  sun  to  sun  and 
carry  an  army's  rations  in  each  car.  Where 
few  could  read  and  less  could  write  and  those 
whose  minds  were  most  advanced  had  scarce 
a  dozen  books  that  did  not  treat  of  war  or  lust 
or  superstition  in  some  form,  the  printing  press 
now  fills  the  land  with  countless  books  contain- 
ing lore  of  every  age,  science,  art  and  every 
branch  of  learning;  and  magazines  and  pam- 
phlets everywhere  make  frequent  visits  into 
every  home,  and  people  of  the  common  sort  when 
they  awake  at  dawn  now  find  upon  the  threshold 
of  their  homes  the  doings  of  the  world  the  day 
before,  brought  by  the  lightning  from  the  dis- 
tant lands.  Where  once  the  simple  hunter  trad- 
ed skins,  his  prowess  gathered  from  the  woods, 
for  food  the  farmer  gathered  from  his  farm, 


FRAILTIES   OF   THE  JURY        107 

and  trade  beyond  the  neighborhood  was  quite 
unknown,  now  merchants  stretch  their  arms  to 
every  quarter  of  the  globe  and  all  the  product^ 
of  earth's  various  climes  we  now  command  and 
buy  and  sell.  Science  has  moved  in  mighty 
strides  and  lifted  superstition's  fogs  and  every- 
where the  minds  of  men  have  broken  bars  that 
hid  the  light.  We  proudly  boast  of  progress  in 
all  the  arts  and  vaunt  ourselves  as  first  in  skill 
and  learning  and  all  the  great  achievements 
which  the  enlightened  mind  admires,  and  yet 
we  blush  to  own  that  in  our  courts  we  still  re- 
tain and  practice  unimproved  the  worn-out,  anti- 
quated modes  of  trial  which  once  were  useful 
to  a  barbarous  people,  but  long  ago  were  obso- 
lete for  us  and  now  a  serious  hindrance  to  our 
progress. 


CHAPTER  XIII. 


General  Faults. 


Selection. 
Tlio  eoniinon  method  of  selection  is  the  blind- 
fold drawinir.  The  law  provides  some  officer 
to  make  a  list.  This  list  contains  the  names  of 
voters,  made  up  from  those  who  voted  at  the 
last  election.  These  are  selected  by  the  officer 
to  suit  his  wishes,  oxclndinj?  those  by  law  dis- 
qualified, and  those  who  have  a  legal  right  to 
claim  exemption.  The  names  so  taken  are  put  on 
separate  slips,  placed  in  a  box  and  then  another 
officer,  with  bandaged  eyes,  draws  from  this  box 
the  names  sufficient  to  make  up  a  panel.  Those 
drawn  are  summoned  to  the  court,  sworn  and 
examined.  If  they  prove  residents  of  the  county, 
are  qualified  as  voters,  can  read  and  write  and 
have  the  sense  of  sight  and  hearing  and  are  be- 
low a  certain  age  they  are  accepted  on  the  panel. 
Lawyers  and  doctors,  clergymen  and  druggists, 
teachers  and  editors,  and  many  public  officers 
have  legal  right  to  be  excused.  Men  whose  en- 
gagements are  important  are  usually  let  go  and 

108 


FRAILTIES  OF  THE  JURY        109 

only  those  remain  who  can  plead  no  excuse  in 
law. 

When  any  case  is  called  for  trial  the  names 
thus  on  the  panel  are  put  on  other  slip's  and 
mixed  together  and  the  clerk  draws  from  these 
haphazard  until  the  jury  box  is  filled.  This  is 
the  usual  method  of  selection.  It  varies  some- 
what in  the  different  states  but  is  essentiall}^ 
the  same  in  every  court  Avhere  jurors  are  em- 
ployed. The  object  is  to  get  a  jury  drawn  from 
the  body  of  the  county  who  are  its  citizens. 
When  in  the  box  the  jury  are  examined  by  the 
lawyers  who  represent  each  party  to  ascertain 
if  they  have  any  bias.  If  found  related  to  either 
party  or  interested  in  the  cause  on  trial,  or  they 
have  formed  opinions  that  are  unqualified, 
about  the  merits  of  the  suit,  they  may  be  chal- 
lenged as  unfit.  Most  states  provide  for  chal- 
lenges by  either  party,  for  which  no  reason  need 
be  given.  These  are  called  "peremptory"  and 
the  number  fixed  by  law  according  to  the  nature 
of  the  case.  The  place  of  every  juryman  ex- 
cused is  by  another  filled  until  the  jurors  on 
the  panel  have  all  been  called,  then  talesmen 
may  be  summoned  to  fill  the  box.  Such  are  the 
usual  methods  used  to  get  a  jury. 

The  part  blind  chance  plays  in  the  game  is 


no        FRAILTIES   OF   THE  JURY 

most  important.  On  this  alone  all  must  rely. 
Once  men  were  slaves  of  superstition.  Then 
nii<rhty  rulers  watched  the  flight  of  birds,  or 
killed  them  and  searched  their  entrails  and  by 
what  they  saw  or  found  decided  between  war 
and  peace.  And  sages  far-famed  for  learning 
noted  the  incoherent  words  of  those  insane  or 
drunk  and  deemed  them  oracles  l)y  which  the 
gods  revealed  their  wills  to  men.  8ucli  now 
seems  foolish,  but  is  it  any  worse  than  letting 
chance  decide  the  character  of  a  jury?  If 
chance  should  be  the  arbiter  in  courts  then  why 
not  throw  a  die  or  flip  a  coin  and  thus  decide 
the  suit  without  a  trial?  The  just  decision  of 
a  case  according  to  the  law  and  fact  requires  an 
expert  knowledge.  "Would  anyone  select  a  sur- 
geon thus,  a  lawyer  or  a  judge,  by  drawing 
blindfold  from  a  box  such  names  as  chance 
might  give  from  the  legal  voters?  Would  any 
sane  man  hire  an  agent  thus  for  even  common 
work?  This  method  is  so  strikingly  absurd  that 
dwelling  on  it  further  seems  a  waste  of  time. 
It  may  be  said  the  reason  why  this  grab-bag 
game  is  played  is  to  secure  a-  fair,  impartial 
drawing,  that  such  our  lack  of  faith  in  public 
officers  we  rather  trust  to  luck  than  to  their 
judgment.     This  belief  is   quite   as  foolish   as 


FRAILTIES   OF   THE  JURY        111 

the  system.  There  is  no  game  of  chance  where 
cunning  may  not  intervene  to  stack  the  cards 
or  load  the  dice,  or  in  some  other  way  contrive 
to  cheat  those  who  rely  on  fickle  fortune.  But 
none  is  quite  so  easy  as  this  one.  It  needs  no 
expert  skill  to  so  arrange  the  names  and  draw 
the  panel  as  to  pack  the  jury.  The  officer  who 
does  the  drawing  is  rarely  closely  watched.  If 
he  be  plastic  to  designing  bribers  he  has  no  trou- 
ble to  get  a  jury  suited  to  their  desires.  He 
who  is  so  simple-minded  that  he  will  pin  his 
faith  for  honest  jurors  on  such  a  method  of  selec- 
tion lacks  knov/ledge  of  the  ways  of  rascals. 

The  law  should  fix  the  qualities  that  fit  for 
jury  service.  These  should  include,  such  edu- 
cation, skill  and  training  and  well-known  char- 
acter for  honor  as  will  be  needed  to  discharge 
the  task  imposed.  Men  thus  qualified  might  be 
selected  by  other  men  appointed  by  the  courts  of 
last  resort  as  a  commission  for  that  purpose 
and  thus  a  list  made  up  from  which  to  draw 
the  panel.  When  this  list  was  made  and  furn- 
ished to  the  court,  the  judge  might  draw  his 
panel,  selecting  from  the  list  the  best  names 
he  could  find  thereon,  according  to  the  knowl- 
edge which  he  has  or  information  that  he  can 
obtain,  striving  at  all  times  to  procure  those 


U-2        FRAILTIES   OF   THE  JURY 

best  adapted  to  the  service,  aud  freest  from 
suspicion.  If  jurors  were  selected  thus  they 
would  be  fitted  when  first  required  to  sit  and 
by  experience  would  improve.  Then  would  the 
right  arm  of  the  court  be  worthy  of  its  place  and 
not  be  paralyzed  as  now  by  unfit  men.  The 
judges  who  had  power  to  so  select  would  have 
a  pride  in  their  selection,  getting  the  best  men 
they  could  find. 

The  method  here  proposed  may  not  be  per- 
fect and  doubtless  many  better  may  be  found, 
but  the  present  system  is  so  bad  that  almost 
any  change  would  better  it,  and  surely  one  is 
sorely  needed.  This  weak  spot  in  our  judicial 
fabric  grows  weaker  every  day.  In  former  years 
cases  were  few,  amounts  in  question  small,  aud 
few  the  efforts  to  corrupt  the  jury.  Great 
changes  are  occurring  in  the  sum  and  charac- 
ter of  the  causes.  Vast  fortunes  now  are  pass- 
ing through  the  courts  and  changing  hands  in 
lawsuits  and  much  larger  sums  depend  upon  the 
verdicts.  With  this  increase  has  come  increased 
temptations  and  a  strong  demand  for  better  men 
to  fill  the  box.  Meanwhile  the  growth  of  cities 
and  the  spread  of  crime  has  made  the  mass  to 
draw  from  more  uncertain.  The  blindfold 
method  will  no  more  suffice  and  must  give  place 


FRAILTIES   OF   THE  JURY        113 

to  one  insuring  fitness,  or  else  our  courts  will 
soon  become  the  playground  of  corruption  where 
scheming  agents  of  designing  suitors  will  pack 
the  jury  with  their  minions,  ready  to  sign  the 
verdicts  they  have  written. 
Unanimity. 
The  verdict  must  be  found  by  all  the  jurors. 
All  must  agree.  This  feature  is  anomalous. 
The  nation's  highest  court,  composed  of  only 
nine,  decide  the  fate  of  millions  by  a  majority 
of  one.  This  judgment  of  five  men  may  shatter 
solemn  acts  which  Congress  has  declared  to  be 
the  law.  The  highest  courts  in  all  the  states 
may  thus  declare  their  judgment.  Congress 
and  legislatures  pass  their  bills  and  corporate 
boards  manage  the  millions  in  their  hands.  If 
bills  required  the  vote  of  all  to  pass,  few  laws 
would  be  enacted  and  the  business  of  the  nation 
could  easily  be  blocked  by  fools  or  knaves.  If 
mere  majorities  may  pass  our  laws  and  mere 
majorities  construe  their  meaning  and  set  aside 
the  jury's  verdict,  then  in  the  name  of  all  con- 
sistency, why  should  the  will  of  one  be  able 
to  prevent  a  verdict  by  the  other  jurors?  And 
yet,  so  blind  remain  our  legislators  that  they 
bow  down  before  this  jury  fetich,  decayed  and 
moss-grown  with  its  hoary  age,  and  dare  not 


114        FRAILTIES   OF    THE   JURY 

make  the  slightest  change.  The  writer  for  many 
years  was  in  the  crowd  wlio  worshiped  without 
reason.  Cases  requiring  many  weeks  for  trial 
were  tried  once,  twice  and  thrice,  and  every 
time  one  juror  blocked  a  verdict  until  from 
waiting  weary  years  the  plaintiffs  were  exhaust- 
ed and  made  a  compromise,  recovering  but  a 
fraction  of  that  they  claimed  as  due,  and  by  the 
eleven  on  the  jury  considered  just.  Yet  so 
sacred  did  he  deem  this  idol  that  he  could  not 
consent  to  change  its  ugly  form  or  take  away 
one  worm  that  burrowed  in  its  moss.  If  seven 
of  the  twelve  could  find  a  verdict  jurors  would 
seldom  disagree,  and  much  loss  occasioned  by 
mistrials  would  be  avoided;  few  compromises 
would  occur  and  verdicts  might  approach  to 
justice. 

The  Number. 
Another  feature  is  the  number.  Israel  had 
twelve  tribes,  and  Christ  had  twelve  apostles, 
therefore  must  we  have  twelve  men  on  the  jury? 
These  are  the  only  reasons  I  can  conjure  up.  If 
weight  of  flesh  were  useful  the  number  would 
add  power,  or  if  the  task  could  be  divided  into 
sections  each  juror  might  take  a  part  and  num- 
ber be  the  means  of  speed.  But  neither  fact  ex- 
ists.    Since  every  juror  must  do  all  the  work, 


FRAILTIES   OF   THE  JURY        115 

must  hear  all  evidence,  remember  all,  and  all 
consider,  and  form  a  judgment  on  his  own  ac- 
count, the  number  is  a  brake  and  not  a  help. 
As  well  it  might  be  fifty  or  a  hundred  as  just  a 
dozen.  The  nation's  highest  court,  as  I  have 
shown,  contains  but  nine;  most  state  courts 
of  the  highest  sort  but  six  or  seven,  and  some 
have  only  three.  From  their  high  perches  these 
great  courts  decide  the  weightiest  matters  and 
give  decisions  that  are  final.  Why  then  should 
twelve  men  be  required  to  try  a  simple  case,  thus 
subject  to  review  by  courts  of  one  or  three  or 
seven.  The  number  some  may  say  secures  de- 
liberation which  would  not  be  the  case  if  one 
man  was  the  jury.  This  I  concede  has  force. 
Each  controverted  question  has  two  sides  and 
two  may  represent  these  sides,  and  lest  they 
might  stand  one  and  one  against  each  other 
and  so  no  verdict  be  obtained,  a  third  might 
well  be  added;  thus  two  of  three  could  find  a 
verdict.  I  find  no  basis  for  a  larger  number 
and  think  that  three,  except  in  matters  of  the 
highest  import  might  well  suffice  to  form  a  jury. 
These  should  be  qualified  as  I  before  have  urged 
and  then  their  judgment  would  be  as  likely  to 
be  right  as  are  the  courts  of  last  resort  which 
hear  the  case  from  printed  abstracts. 


CHAPTER  XIV. 


Restricted  Juries. 


A  most  important  branch  of  jurisprudence 
now  has  no  jury.  In  chancery  cases,  which  in- 
volve great  questions  of  both  law  and  fact 
and  large  sums  are  at  stake,  no  jury  is  allowed 
unless  the  chancellor  thinks  that  he  needs  a 
jury  to  advise  his  conscience.  This  seldom  is 
required,  and  when  he  gets  a  verdict  he  may  dis- 
regard it.  The  judge  who  sits  to  try  these 
chancery  suits,  sits  also  on  the  law  side  of  the 
court,  where  every  suitor  may  demand  a  jury  on 
every  controverted  question,  and  must  have  one 
unless  he  waives  it.  Thus  the  same  man,  whom 
we  trust  to  try  disputes  involving  millions,  if 
the  suit  is  brought  on  one  side  of  the  court,  may 
not  determine  the  most  trifling  issue  if  on  the 
other  side  without  the  verdict  of  twelve  men. 
And  these  two  sides  are  merely  legal  fictions. 
Once  they  had  meaning.  The  system  that  we 
call  the  common  law  grew  like  a  tree.  Its  trunk 
was  rooted  in  the  throne  of  England,  and  sent 
out  a  branch  providing  many  forms  of  action,  in 

116 


FRAILTIES   OF   THE  JUBY        117 

which  the  king  was  forced  to  grant  a  jury. 
Finding  these  forms  of  action  incomplete, 
judges  grafted  to  the  trunk  of  this  great  tree 
another  branch  providing  for  another  form  of 
suit  which  they  assumed  to  try  without  a  jury, 
claiming  its  nature  needed  greater  wisdom 
than  the  jurors  would  possess.  This  tree  we  have 
transplanted  with  these  branches  and  here  it 
grows,  both  branches  drawing  forces  from  the 
self-same  roots,  and  having  fruit  of  like  va- 
riety, are  practically  the  same,  but  still  we 
keep  the  fiction  that  was  framed  on  foreign  soil. 
The  same  judge  sitting  on  one  branch  declares 
himself  a  court  of  common  law,  when  on  the 
other  branch  a  court  of  chancery.  Now  bring 
to  view  the  whole  and  we  can  plainly  see  how 
foolish  the  distinction.  If  we  can  trust  a  single 
judge  to  try  one  suit,  why  not  another,  with  no 
greater  sum  at  issue?  And  why  may  not  the 
jury  be  abolished  in  common  law  as  well  as 
chancery  suits?  Most  lawyers  have  a  leaning 
toward  the  jury,  so  has  the  writer,  and  would 
retain  some  form  of  it  in  every  case  where  any 
reason  can  be  found,  but  we  must  search  in  vain 
to  find  a  reason  for  its  use  in  civil  suits.  Where 
claims  are  small  one  judge  learned  in  the  law 
and  trained  at  hearing  evidence  ought  to  suffice, 


118        FUAILTIE^S    OF   THE   JURY 

and  wliero  the  sum  involvoci  does  not  exceed 
live  hundred  dollars,  to  brinji:  in  other  men  to 
aid  who  have  less  skill  and  training  seems  a 
waste  of  time,  especially  when  his  jiulynient  is 
reviewed  by  other  judges  on  appeal.  Where  the 
sum  in  question  exceeds  this  sum  and  the  greater 
risk  might  call  for  other  men  to  share  it,  two 
might  be  added,  and  two  of  this  three  determine 
the  decision.  The  judge  or  judges  who  decide 
the  case  should  find  the  facts,  and  all  the  evi- 
dence offered  by  either  party  should  be  admit- 
ted, except  where  all  who  sit  find  it  irrelevant. 
This  evidence  and  facts  so  found  should  con- 
stitute the  record  on  appeal  and  there  the  case 
should  be  decided  on  its  merits,  and  final  judg- 
ment entered.  In  this  way  would  we  have  a 
speedy  trial  and  termination  of  the  case,  and 
escape  the  game  of  battledoor  and  shuttlecock 
so  often  played  by  courts.  This  would  rid  us 
of  a  mass  of  questions  which  now  so  often  cause 
us  trouble  relating  to  the  proper  functions  of  the 
court  and  jury.  The  law  makes  jurors  judges 
of  the  facts  in  many  cases,  and  courts  are 
judges  of  the  law.  Most  cases  are  so  mixed  with 
questions  of  both  law  and  fact  that  what  is 
strictly  law  and  what  is  strictly  fact  becomes 
most  difficult,  for  at  the  last  analysis  all  laws 


FRAILTIES   OF   THE  JURY        119 

are  facts  and  facts  are  often  laws.     So  where 
the  judge's  province  has  its  end  and  Avhere  the 
jury's   does   begin   breeds     close     distinctions, 
which  depend  upon  the  fineness  of  the  sight  of 
him  who  views  them.     The  minds  of  learned 
courts  so  often  disagree  that  myriads  of  cases 
are  reversed  and  tried  again  because  forsooth  the 
upper  court  believed  the  lower  court  had  erred 
in    taking    from    the    jury    or    in    not    taking 
some  question  as  it  ought.     Great  losses  are  in- 
curred to  suitors  by  this  conflict,  which  usually 
is  remote,  and  touches  not  the  substance  of  the 
suit,  and  in  the  end  does  nothing  but  decide 
who  should  decide  the  case,  not  how  decide  it. 
The  losses  thus  sustained  are  large  indeed,  but 
small  when  set  against  the  enormous  waste  now 
caused  by  bad  instructions  to  the  jury,  or  those 
which  upper  courts  may  hold  are  bad.     About 
one-third  of  all  the  suits  appealed  return  for 
second  trial  because  of  faults  in  this    respect. 
The  jury  are  supposed  to  know  no  law,  which 
probably  is  true.     They  are  supposed  to  get  a 
knowledge   from   the   court  which   probably   is 
not.     The  fine  distinctions  made  in  legal  points 
mean  nothing  to  the  jury,  and  yet  the  courts 
must   logically   presume   that   they   are   under- 
stood, and  that  instructions  faulty  in  the  least 


120        FRAILTIES   OF   THE   JURY 

degree  may  have  worked  serious  harm,  and  so 
ten  thousand  errors  have  arisen  and  caused  re- 
verses which  really  had  no  bearing  on  the  ver- 
dict. The  train  of  woes,  defeats  and  disap- 
pointments springing  directly  from  this  source 
are  quite  beyond  our  calculation.  Thus  often 
have  the  claims  possessing  greatest  merit  suf- 
fered delay  until  the  death  or  loss  of  witnesses 
have  compassed  their  defeat;  and  others  have 
been  wasted  in  protracted  trips  from  court  to 
court.  The  abolition  of  the  jury  in  civil  suits 
would  bring  relief  from  losses  such  as  these. 

The  claim  is  often  made  that  damage  suits 
necessitate  a  jury  trial.  Such  damages  can  not 
be  calculated  by  any  certain  standard ;  pain,  loss 
ol"  health,  beauty  or  reputation  rely  for  com- 
pensation on  opinions,  and  these  may  be  as  nu- 
merous as  the  persons  who  compose  the  jury. 
Hence,  it  is  said,  twelve  average  men  can  give 
a  better  estimate  than  any  judge.  If  that  be  true, 
■Ahy  should  the  judge  have  power  to  nullify 
that  estimate  and  set  aside  the  jury's  verdict? 
My  observations  lead  me  to  believe  the  supposi- 
tion is  not  true.  The  average  jury  has  no  skill 
to  ju.stly  pass  on  damage  claims.  Thej'^  can  not 
separate  the  loss  from  liability  to  pay  the  loss. 
Bi.rne  on  a  sympathetic  tide  that  carries  all 


FRAILTIES   OF   THE  JURY        121 

before  it  they  but  see  the  loss  sustained  and  ask 
not  for  the  fault  that  caused  it.  The  courts 
contrive  in  every  way  to  check  this  sympathy 
and  go  to  great  extent  in  nullifying  verdicts. 
If  they  did  not  and  gave  to  the  jury  all  the  sway 
the  law  intends,  the  stream  of  wealth  required  to 
pay  such  claims  would  ruin  every  public  cor- 
poration and  many  private  parties.  An  injury 
so  slight  that  had  it  happened  from  an  acci- 
dent on  which  no  suit  was  brought,  it  would 
have  scarcely  had  a  moment's  thought,  becomes 
of  such  importance  when  magnified  in  court  by 
plaintiff  and  his  witnesses  that  all  the  savings 
of  a  thrifty  life  would  scarce  suffice  to  pay  the 
verdict.  To  save  themselves  from  verdicts  such 
as  these  defendants  go  great  lengths  in  de- 
vious ways.  They  hire  most  artful  counsel  to 
cajole  the  jury,  to  coax  and  flatter  them  and  win 
attention  from  the  plaintiff's  wrongs  to  their 
sleek  persons.  They  use  the  officers  of  the  court 
to  juggle  with  the  panel,  thus  getting  for  their 
cases  the  hardest  hearts  and  closest  purses, 
whose  itching  palms  may  easiest  be  reached. 
They  line  the  pockets  of  the  judge  with  passes 
or  other  so-called  courtesies  designed  to  make 
him  mellow.  They  sweeten  relatives  of  the 
jurors   with   sly,   ambiguous   favors,   expecting 


122        FRAILTIES   OF   THE  JURY 

that  the  sugar-coated  dose  will  somehow  work 
upon  the  jury;  and  when  the  sum  involved  will 
warrant  such  a  risk,  they  send  out  under  cover 
of  the  night  agents  with  bribes  to  visit  homes  of 
jurors.  By  these  and  many  other  underhanded 
ways,  defendants  in  these  damage  claims  have 
nullified  to  great  extent  the  vast  advantages 
which  a  jury  otherwise  would  give  the  plain- 
tiflfs.  Here  then,  as  elsewhere,  there  are  natural 
checks  by  Avhich  one  wrong,  in  part,  off-sets 
another.  A  jury  eager  to  despoil  the  rich  man's 
purse  and  help  the  claimant,  whether  right  or 
wrong,  begets  defendants  who  for  self-defense 
will  use  the  vilest  means  to  hang  the  jury,  and 
judges  who  know  the  jury's  bias  are  easily  in- 
clined as  far  one  way  as  jurors  are  the  other. 
Because  of  these  abuses  of  the  courts  by  which 
both  judge  and  jury  are  disabled  from  form- 
ing fair,  unbiased  judgments,  the  just  claim  has 
no  better  chance  than  it  would  have  without  a 
jury.  Three  well-trained,  upright  judges, 
scorning  to  favor  either  party,  would  be  far 
safer  for  the  honest  claim  than  this  bad  mix- 
ture of  biased  judge  and  jury,  and  he  whose 
claim  was  false  would  be  quite  certain  of  defeat. 
Men  trained  to  judge  are  not  less  tender  to 
human  suffering  than  the  common  mass  that  are 


FRAILTIES   OF   TEE  JURY        123 

untrained,  nor  are  they  less  inclined  to  value 
loss  sustained  by  hurts  and  slander;  and  where 
the  facts  and  law  create  a  right  of  action,  they 
are  more  prone  to  give  fair  compensation  than 
men  of  less  learning.  But  they  place  above 
their  sympathies  the  duty  that  the  law  enjoins, 
and  so  allow  no  spectacle  of  woe  to  move  them 
to  forsake  it.  It  is  therefore  my  belief  that  in 
this  class  of  suits  a  jury  is  not  needed.  There 
is,  however,  one  consideration  which  makes  me 
hesitate.  Due  partly  to  the  jury  system,  as  I 
before  have  stated,  and  partly  to  a  lust  for  power 
and  gain,  great  combinations  of  the  corporate 
type  have  grasped  the  government  in  all  its 
branches.  Their  tentacles  have  touched  the  seat 
where  sits  the  judge.  Their  lobbies  whisper  in 
his  ears  the  welcome  promises  of  future  favor. 
They  bring  to  bear  upon  the  bench  seductive 
arts,  well  planned  to  win  weak  men,  and  by 
their  miuions  they  so  pull  the  wires  of  politics 
that  weaklings  find  a  pathway  to  the  bench,  and 
sometimes  do  they  place  thereon  the  men  who 
many  years  have  been  their  servants.  Such  pow- 
er they  now  possess  with  prospect  of  increase  as 
years  go  by,  that  the  procurement  of  three  up- 
right men  to  hold  the  balance  fair  in  cases 
such  as  these  might  prove  most  difficult;   and 


124        FRAILTIES   OF   THE  JURY 

now  therefore  it'  there  is  a  reason,  which  I  do 
not  concede,  that  we  should  still  retain  the  jury 
in  these  cases,  it  must  be  as  the  price  of  our 
ilebasemcnt,  because  we  can  not  trust  ourselves 
to  place  upon  the  bench  the  competent  and 
honest  men  who  should  be  there.  The  jury 
as  we  have  it  now  is  but  a  weak  protection  in 
any  case  and  weaker  grows  from  day  to  day,  be- 
comes a  greater  burden,  clog,  and  means  to  cause 
delay  with  every  passing  year,  until  a  trial  has 
become  a  long-continued  game  of  chance,  bring- 
ing discredit  on  our  courts  and  ruin  to  the 
righteous  suitors.  If  jurors  are  retained  they 
should  be  made  of  better  men  to  give  us  much 
protection,  should  be  reduced  in  number  and 
a  mere  majority  empowered  to  find  a  verdict. 
The  laws  should  guard  with  greatest  care  all 
steps  in  their  selection.  ]\Ien  worthy  of  the 
highest  trust  should  do  the  work,  having  the 
end  in  \new  of  getting  on  the  jury  list  the  names 
of  those  most  fit  for  jury  service.  If  those 
whose  waxing  riches  have  placed  them  at  the 
top  in  power  would  use  their  means  to  purify 
the  bench  and  not  debase  it,  there  is  no  doubt 
a  jury  would  be  a  useless  thing  in  trying  civil 
cases. 

The  claim  is  sometimes  made  that   lawyers 


FRAILTIES  OF  THE  JURY        125 

are  too  technical  and  therefore  unsafe  judges 
where  the  facts  are  close  and  evidence  conflict- 
ing, and  that  it  is  far  better  to  have  the  laity  per- 
form this  work.  I  see  no  force  in  this  objection 
against  the  bar,  but  if  there  is,  and  men  not 
trained  in  law  should  sit  in  judgment  on  the 
facts  in  issue,  then  I  suggest  they  sit  upon  the 
bench  in  seats  of  honor  like  sovereigns,  having 
equal  power  and  rank  with  other  judges.  The 
jury  now  are  captives,  who  sit  like  dummies, 
subject  to  the  call  of  him  we  call  the  judge. 
Their  function  is  important  and  if  they  are 
worthy  to  discharge  it  they  should  be  treated 
as  we  treat  the  judge.  Let  there  be  two  of  them 
instead  of  twelve  and  with  one  lawyer  elected  as 
the  judge  make  up  the  court.  This  trinity  could 
then  decide  all  civil  cases,  each  having  privil- 
eges of  taking  notes  and  asking  questions  and 
using  transcripts  of  the  evidence  in  forming 
court  opinions  and  equal  voice  in  making  up 
the  judgment. 

In  prosecutions  brought  for  crimes  where  life 
or  liberty  is  at  stake  we  have  a  different  ques- 
tion. Money  means  much  to  its  possessors  and 
more  to  those  who  have  it  not,  and  yet  most 
people  hold  it  lightly,  staking  it  upon  the  merest 
chance  or  casting  it  aside  for  whims  and  trifles. 


12fi         FRAILTIES    OF    THE   JURY 

Life  is  the  gift  of  heaven,  and  liberty  its  fair- 
est, sweetest  fruit,  without  which  life  seems 
but  an  empty  cheat,  and  both  are  dear  beyond 
compare,  and  should  be  treated  as  priceless  boons 
in  every  court  of  justice.  No  one  should  forfeit 
either  until  the  proof  is  clear  and  leaves  no  room 
to  doubt  in  the  minds  biased  by  suspicion,  en\y 
or  revenge.  If  anyone  the  law  has  placed  in 
judgment  has  doubt  about  the  prisoner's  guilt, 
when  all  the  evidence  has  been  heard  and  been 
considered,  the  verdict  should  acquit.  And  I  go 
further  still  in  favor  of  the  accused;  if  circum- 
stances so  surround  the  act  and  him  who  did 
the  deed  that  mercy  may  be  properly  invoked, 
there  is  no  place  in  all  the  land  more  fit  to  meas- 
ure mercy  and  apply  it  than  this,  where  all 
the  facts  are  known,  and  in  no  office  is  it  more 
becoming  than  at  the  judgment  seat.  After 
the  question  of  a  prisoner's  guilt  it  should  be 
asked :  Is  this  a  case  to  punish  ?  and  how 
much?  And  everyone  who  sits  in  judgment  on 
the  bench  or  in  the  jury  box  should  vote  for 
punishment  as  his  own  free  judgment,  before 
conviction  is  secured.  In  ordinary  accusations 
incurring  but  a  fine  or  short  jail  sentence  a 
trained  and  upright  judge  should  be  sufficient 
to  decide  the  matter,  and  fix  the  punishment. 


FRAILTIES   OF   THE  JURY        127 

subject  to  review  upon  appeal  if  one  is  taken. 
In  accusations  which  may  lead  to  terms  in  prison 
of  one  year  or  more,  or  to  the  taking  of  a  life, 
three  men  should  constitute  the  bench,  save  in 
a  certain  class  of  crimes  where  I  would 
add  a  jury.  Treason  and  government 
offenses  and  those  which  have  their  root 
in  politics  and  may  be  punished  by  destroying 
life,  should  have  a  jury  when  the  accused  re- 
quests it,  who  sit  free  from  coercion  by  the 
bench,  decide  in  secret,  and  must  agree  to  cause 
conviction.  The  object  of  this  jury  is  to  coun- 
teract the  natural  bias  so  liable  to  sway  judi- 
cial officers  in  such  a  trial  and  give  the  victim 
a  better  chance  to  be  protected  from  official 
power.  The  number  that  should  form  this  jury 
is  not  an  easy  question.  There  is  no  basis  on 
which  to  fix  it.  Twelve  seems  too  many;  six 
ought  to  be  sufficient ;  thus  doubling  the  number 
sitting  on  the  bench,  and  making  nine  in  all. 
In  order  to  convict,  the  nine  should  all  agree 
beyond  a  doubt  as  to  the  prisoner's  guilt,  and 
that  he  has  no  claim  to  mercy.  This  judgment 
subject  to  review  upon  its  merits  if  defendant 
wishes  to  appeal,  should  give  the  culprit  just 
protection  and  save  him  from  the  vengeance 
of  his  foes. 


CHAPTER  XV. 


Choosing  a  Jury. 


At  common  law  the  sheriff  made  a  list  and 
parties  struck  the  names  therefrom  until  a  panel 
was  secured.  These  were  summoned  and  no 
challenges  allowed  except  for  cause.  Most  states 
have  laws  allowing  challenges  peremptory,  where 
no  cause  is  stated.  Lawyers  then  may  choose 
whom  they  will  take  and  whom  reject  within  the 
limits  thus  prescribed.  Here  is  the  riddle  of 
the  sphinx,  that  neither  men  nor  stars  have 
means  to  solve.  The  fresh-fledged  nestling  from 
the  schools  with  untried  wing  and  high,  ambi- 
tious hopes,  may  feel  oppressed  with  knowledge 
which  drizzles  from  his  overflowing  stock,  and 
so  have  much  to  say  on  this.  He  merely  strips 
his  shoulders  for  the  stripes  which  coming  years 
will  bring.  In  many  sad  defeats  he  will  unlearn 
the  lore  so  confidently  held.  The  prudent  vet- 
eran of  a  thousand  battles,  whose  back  is  cal- 
loused with  the  stings  that  disappointment  gives, 
when  asked  for  his  advice  on  this  will  shake  his 
head  and  change  the  subject.     And  I  perhaps 

128 


FRAILTIES   OF   THE  JURY        129 

might  better  leave  unsaid  what  many  readers 
wish  to  know.  On  this  dark  point  my  torch 
is  dim.  I  claim  no  light  beyond  that  com- 
mon stock  which  years  may  bring  to  all  who 
strive  and  suffer.  Long  have  I  tried  to  read  the 
minds  of  jurors;  but  alas,  the  soul  of  man  is 
like  the  face  of  Jove,  veiled  in  thick  clouds. 
Sometimes  my  nearest  neighbor,  chum,  and  con- 
fidant has  hung  the  jury  and  defeated  me,  and 
sometimes  a  man  I  knew  an  enemy,  drawn  in 
the  box  when  challenges  were  gone,  has  saved 
the  verdict  for  me.  In  fifty  cases  that  I  tried 
one  year  I  had  no  adverse  verdicts;  another  year 
in  fifty-three  I  lost  but  two.  And  in  the  follow- 
ing year  suits  which  promised  sure  success  met 
quick  defeat  and  all  my  cherished  hopes  crum- 
bled like  ashes  in  my  hands.  Such  is  the  sad 
uncertainty  attending  jury  trials  and  show  how 
far  from  perfect  are  all  plans  for  picking  jurors. 
Yet  there  are  rules  in  guessing  which  have 
seemed  to  serve  me  well,  and  these  I  offer  here 
for  such  consideration  as  they  may  deserve. 
Juries  should  fit  the  case.  Suits  complicated 
with  mixed  questions  requiring  careful  thought 
and  nice  distinctions  need  men  of  intellectual 
grasp.  The  lawyer  who  expects  to  win  because 
his  cause  is  just  and  tries  to  found  it  on  the 


l:U)        Fh'AILTIES   OF    THE  JUHY 

plaue  of  reason  should  strive  for  jurors  who 
can  understand  the  reasons  that  are  urged.  This 
is  essential  to  the  plaintiff  and  to  defendant 
doubly  so.  The  latter  must  rely  on  mental 
strength  to  stand  against  the  closing  speech  and 
so  needs  minds  ranged  on  his  side  who  can  not 
be  deceived  by  sophistry,  or  moved  by  strong 
appeals  to  passion.  The  suitor  with  a  doubtful 
case  but  feebly  bolstered  in  the  evidence,  de- 
pending more  on  pity  than  on  law  or  facts,  seeks 
more  for  hearts  than  brains.  Men  of  fat,  ruddy 
faces,  large  eyes  and  portly  bodies  are  suited 
to  his  plea  and  serve  him  better  than  high- 
browed  and  frowning  men  with  deep-set  eyes 
and  forms  of  bony  build,  youths  with  bounding 
blood  are  better  far  for  him  than  frosty  age. 

Some  nations  leave  their  impress  on  their 
subjects.  This  lasts  for  many  years;  and  often 
it  appears  upon  a  jury.  The  suitor  of  a  for- 
eign birth  will  often  find  a  juror  of  a  like  de- 
scent much  in  his  favor.  Some  nations  have 
greater  pity  for  the  weak  and  some  a  stronger 
sense  of  duty.  These  facts  the  lawyer  should 
consider.  Fathers  feel  more  for  children,  hus- 
bands more  for  wives  and  widows  than  men  not 
thus  related.  A  situation  like  the  plaintiff's 
in  age,  vocation,  wealth,  or  social  status,  has 


FRAILTIES   OF   THE  JURY        131 

some  effect  to  favor  him  and  if  the  juror  has 
sustained  a  wrong  which  bears  a  close  resem- 
blance to  the  one  alleged,  this  makes  him  easy 
to  convince.  Elements  of  prejudice  like  these 
appear  in  every  jury  and  must  be  reckoned  with. 
They  rarely  are  decisive  of  the  verdict,  unless 
they  move  the  leader  of  the  panel.  One  man, 
more  forceful  than  the  rest,  will  often  take  the 
other  jurors  with  him.  This  man  is  most  im- 
portant to  discover  before  the  jury  is  accepted, 
and  if  his  composition  does  not  fit  your  case 
he  should  be  challenged  and  the  leadership 
placed  in  the  hands  of  one  more  fitted  to  your 
side.  On  this  point  alone  have  more  mistakes 
been  made  than  any  other.  Most  lawyers  con- 
fident of  power  to  argue  and  persuade  prefer 
the  mild-eyed,  yielding  juror  to  the  stern  and 
sober  thinker  with  his  hard,  unsympathetic  face, 
and  on  both  sides  a  plastic  jury  is  the  object 
sought.  The  jury  thus  selected  is  mostly  of  this 
mettle  and  yet  a  few  remain  cast  in  a  different 
mold,  who  have  not  been  discovered  or  could  not 
thus  be  challenged.  One  of  these  is  sure  to 
write  the  verdict.  In  the  world  of  men  the  wise 
select  the  leaders  for  alliance ;  the  common  mass 
they  only  count  with.  They  find  the  wether 
in  the  human  flock  and  put  their  bell  on  him. 


1;12        Fh'AILTIES   OF   THE   JURY 

This  should  the  lawyer  strive  to  do  who  picks 
tiic  jury.  In  this,  however,  he  must  often  fail. 
Wliilo  much  is  evident  from  outward  signs,  it 
often  happens  that  the  inner  man  does  not 
display  his  excellence,  and  he  who  seems  the 
frailest  proves  the  strongest  under  test,  and  he 
who  otters  much  assurance  before  the  battle  has 
begun  proves  but  a  weakling  when  the  fight  is  on. 
Flamboyant  airs  thus  often  may  deceive  and 
make  the  shrewdest  lawyer  found  his  hopes  on 
sand.  It  is  well  to  know  the  history  of  the  man 
and  if  it  fits  his  pompous  seeming;  whether  he 
be  a  trifler  of  the  common  sort  or  have  that 
prowess  that  is  wont  to  deal  in  weighty  matters 
as  if  they  were  but  trifles.  When  you  have  done 
all  that  the  wisest  man  could  do,  to  get  the  best 
of  juries  for  the  cause,  the  slightest  thing  may 
turn  the  whole  awry  and  dash  your  hopes  to 
dust.  Such  is  the  frailty  of  a  common  jury.  To 
seek  for  justice  at  its  hands  is  usually  a  vain 
pursuit.  Attracted  by  its  ancient  source  and 
democratic  composition  we  think  its  lustre  is  the 
star  that  guides  us  to  the  sacred  place  where 
justice  sits  enthroned.  We  follow  its  alluring 
light  with  perfect  trust  and  find  at  last  it  is 
the  ignus  fatuus'  fatal  gleam  that  leads  us  to 
the  tangled  swamp  of  wretchedness  and  ruin. 


CHAPTER  XVI. 


Treatment  of  the  Jury. 


Considering  these  many  frailties  and  all  their 
wide  effects,  how  can  a  lawyer  so  conduct  his 
cause  that  it  shall  suffer  least  and  gain  the  most 
therefrom?  Each  juror  is  a  little  tree  with  many 
tender  branches  and  every  branch  acutely  sen- 
sitive in  some  respect  and  thus  the  twelve  men 
on  the  jury  become  a  wood,  where  he  who  moves 
about  must  take  great  care.  It  is  not  safe  to 
talk  on  general  matters  or  wander  from  the  point 
in  issue  or  comment  on  an  alien  subject  lest 
you  may  hit  some  juror  in  a  tender  spot  and 
make  him  turn  against  you.  A  man  who  throws 
a  stone  into  a  crowd  may  wound  a  friend,  and  he 
who  speaks  against  an  institution  or  a  general 
class,  or  by  derision  grills  a  witness  for  some 
defect  in  speech  or  manner  may  pinch  a  friendly 
juror  and  turn  him  to  the  other  side.  Therefore, 
the  advocate  should  never  wander  or  strike  a 
blow  not  surely  aimed  to  hit  a  certain  mark; 
nor  should  he  show  his  personal  likes  or  hates 
or  make  exposure  of  his  views  on  any  subject 

133 


134        FRAILTIES   OF   THE  JURY 

wlioi-e  men  may  divide,  lost  thereby  some  one  on 
the  jury  who  holds  a  contrary  view  may  much 
dislike  the  exhibition  and  look  with  disfavor  or 
contempt  upon  the  person  making  it.  Nor 
should  the  lawyer  put  himself  in  evidence  in 
any  other  way.  The  ease  alone  is  what  he  has 
to  try  and  certain  questions  only  are  submitted 
to  the  jury.  "What  does  not  bear  distinctly  on 
these  questions  should  be  ignored,  and  all  his 
strength  and  time  be  spent  upon  the  issues.  By 
this  their  untrained  minds  may  be  directed  to 
the  best  advantage. 

All  men  like  praise  and  those  enjoy  it  most 
who  least  deserve  it.  Juries  are  gullible  to  flat- 
tery and  man}'  lawyers  use  it  with  success.  It 
is  a  dangerous  weapon  which  each  side  may  much 
employ  and  thus  competing  with  each  other 
go  to  excess  and  only  win  disgust  from  court 
and  jury.  The  time  so  taken  from  a  true  discus- 
sion and  energy  thus  lost  when  added  to  the 
degradation  caused  thereby,  make  up  a  sum  of 
loss  which  more  than  equals  any  gain  there- 
from. With  great  respect  the  jury  should  be 
treated,  becoming  the  high  function  they  dis- 
charge. This  tends  to  lift  them  to  a  lofty 
plane  above  the  mists  of  petty  bias,  and  here 
they  should  be  kept  that  they  may  reason,  free 


FRAILTIES   OF   THE  JURY        135 

from  unworthy  motives.  He  who  believes  his 
cause  is  just  should  be  content  with  this  and 
so  will  find  a  surer  pathway  to  success.  He 
who  promotes  a  spurious  plea,  depending  on  con- 
fusion and  vile  motives  for  success,  will  always 
strive  to  drag  the  jury  down  from  this  high 
plane.  He  often  may  succeed,  because  their  un- 
developed minds  do  not  detect  false  lights  or 
closely  note  the  lines  where  duty  bids  them 
move.  While  such  men  are  employed,  the  false 
will  sometimes  win  and  justice  stumble  or  mis- 
carry. Such  sad  results  can  be  avoided,  if  at 
all,  when  he  whose  cause  is  just  sticks  to  the 
higher  plane  and  never  in  the  least  degree  soils 
his  clean  hands  with  any  kind  of  baseness.  The 
minds  of  untrained  men  are  easily  upset  and 
turned  awry  by  conflict  and  confusion;  they 
move  but  slowly,  and  he  is  wise  who  hurries 
not  or  tries  to  hurry  them.  The  advocate  should 
take  the  necessary  time  to  clearly  make  the  point 
he  undertakes,  painting  the  background  for  the 
thing  he  would  present,  so  that  it  will  stand 
out  distinct  in  all  its  parts,  thus  stamping  on  the 
juror's  mind  an  image  that  will  last  until  the 
consultation  room  is  reached.  'Tis  better  far 
to  make  a  few  points  clearly  than  many  that 
are  vague.    Those  feebly  painted  may  be  wiped 


136        FRAILTIES   OF   THE  JURY 

away  by  what  occurs  thereafter  and  before  the 
jury  reach  the  room.  Abstractions  are  unsafe. 
The  tersest  statements  of  the  tritest  truths  will 
often  fail  when  made  to  minds  that  slowly  act 
and  are  but  dull  in  comprehension.  Children 
use  blocks  to  learn  the  forms  of  letters  and 
pictures  to  acquaint  themselves  with  words. 
Simple  minds  can  easiest  be  made  to  understand 
by  using  concrete  forms  and  glowing  images. 
Big  pictures  in  strong  lines  will  much  impress, 
while  lines  of  finer  texture  delicately  traced, 
in  soft,  artistic  tints,  may  have  but  slight 
effect.  The  essence  of  the  plaintiff's  case  lies 
in  the  wrong  to  be  redressed.  This  should  the 
lawyer  paint  in  colors  glowing  as  the  truth  will 
warrant  and  give  the  strongest  setting  that  the 
facts  will  bear.  All  should  be  free  and  natural, 
not  showing  efforts  to  exaggerate.  The  conse- 
quences of  this  wrong  and  all  its  wide  effects 
should  have  a  full  portrayal  as  they  bear  upon 
the  state,  the  plaintiff  and  the  law,  that  those 
who  sit  in  judgment  may  freely  comprehend 
what  pleads  for  their  redress.  The  burden  of 
defendant's  ease  is  innocence  or  an  excuse.  The 
facts  that  tend  to  show  him  faultless  or  lay  the 
blame  upon  the  plaintiff  or  some  other  person,  cr 
prove    the  injury  an     accident  with     none  to 


FRAILTIES   OF   THE  JURY        137 

blame,  should  all  be  mustered  and  set  forth  in 
strongest  light  that  jurors  having  all  in  mind 
may  fix  the  blame  and  measure  the  redress. 
From  first  to  last,  all  should  be  so  contrived  that 
it  will  give  their  untrained  minds  the  fairest 
chance  to  comprehend  the  whole.  Thus  will  the 
case  be  fairly  tried  and  justice  done,  if  that  be 
possible  by  such  imperfect  means. 


CHAPTER  XVII. 


Bench,  Bar,  and  Jury. 

When  winds  of  May  awoke  the  violets,  and 
woods  and  fields  had  donned  their  fairest  hue  I 
seized  my  pen,  eager  to  ease  the  burden  that 
so  long  had  lain  upon  my  mind.  "Foibles  of 
the  Bench"  was  first  my  theme.  From  out  the 
musty  chambers  of  the  past  I  brought  the  vis- 
ions of  my  early  years  and  resurrected  forms 
of  long  ago.  From  these  I  framed  composites, 
hoping  without  offense  to  show  thereby  what 
havoc  may  be  wrought  by  human  weakness  of 
the  milder  kind  when  lifted  to  that  lofty  seat. 
Some  have  received  the  message  that  I  penned 
and  sent  to  me  their  kindly  words,  and  now  I 
watch  and  wait  to  see  the  fruitage  of  the  seed 
thus  sown. 

When  summer's  reign  was  in  its  fullest  prime 
I  took  again  the  pen  and  wrote  of  "Foibles  of 
the  Bar"  and  launched  the  little  craft  upon  the 
tide,  hoping  it  might  drift  to  sympathetic  hands, 
where  it  would  bless  my  brothers  at  the  bar 
and  those  who  might  thereafter  seek  its  foid. 

138 


FRAILTIES   OF   THE  JURY       139 

Nor  was  I  disappointed  here.  It  touched  a 
tender  chord  which  brought  me  sweetest  music. 
A  mother  loves  the  babe  she  brought  to  life  and 
feels  a  throb  of  heaven  to  hear  it  praised.  Thus 
did  the  words  come  back  to  me  that  spoke  of 
merit  in  my  book. 

Now  in  November's  melancholy  days,  when 
chilling  gusts  sport  with  withered  leaves,  I  stand 
again  upon  the  rippling  beach  prepared  to  start 
another  craft.  Much  do  I  fear  it  will  not  find  the 
favoring  gales  that  met  my  other  ventures.  Se- 
curely in  its  box  the  jury  sits  wreathed  by  the 
halo  of  the  centuries,  and  well  may  smile  at  any 
words  of  mine  however  well  directed.  The  mul- 
titude of  broken  hearts,  the  victims  of  its  lack 
of  skill,  now  beat  no  more.  The  long  proces- 
sion of  the  innocent,  torn  from  their  homes  and 
carted  to  the  scaffold,  may  not  arise  to  plead 
again  their  causes. 

Like  unskilled  surgeons  awkward  with  the 
knife  the  juries'  worst  mistakes  are  in  the  tomb. 
Our  earth  has  seen  a  deal  of  cruelty.  The  race 
in  struggling  upward  toward  the  light  has 
strewn  its  path  with  wrecks.  Each  institution 
that  we  cherish  most  began  in  wrong,  and  like 
the  Hindoo  Juggernaut  crushed  many  prostrate 
victims  while   it   onward  moved,   until   at  last 


140        FRAILTIES   OF  THE  JURY 

by  law  of  precedent,  what  once  was  wrong  be- 
came a  sacred  right.  A  straggling  few  of  all 
the  countless  crimes  appear  on  history's  page; 
the  most  are  lost  to  human  annals.  But  of  these 
few  some  of  the  blackest  sort  were  fashioned  by 
the  courts.  In  these  proceedings  juries  had  a 
hand.  A  tyrant  rarely  had  a  task  so  mean,  so 
foul  and  full  of  blood  and  horror  that  he  could 
not  find  a  solemn-visaged,  servile,  oath-bound 
jury  to  give  it  righteous  color  by  a  verdict.  But 
jurors  have  not  acted  on  their  own  account,  they 
have  been  truckling  tools  of  stronger  men ;  some- 
times the  dupes  of  despots,  othertimes  of  mobs 
and  always  by  the  agency  of  lawyers.  Bench^ 
bar,  and  jury  box  have  often  stood  a  trinity 
in  crime  and  then  the  other  two  have  made  a 
scapegoat  of  the  box,  saddling  their  vilest  sins 
upon  the  simple  weaklings  who  have  filled  it. 
This  is  the  rule  in  all  affairs  of  life,  the  strong 
receive  the  profits  and  the  weak  the  blame.  Yet 
after  centuries  the  jury  still  retains  its  place 
within  our  courts,  is  still  responsive  to  coercive 
means  and  swayed  by  bias  and  unworthy  mo- 
tives. 'Tis  still  a  clog  and  hindrance  on  the 
wheels  of  justice,  the  hope  of  knaves  and  cloak 
to  cover  crime.  On  every  hand  we  see  its  errors, 
the  numerous  wrecks  its  blunderings  have  made 


FRAILTIES   OF   THE   JURY        141 

in  wasted  fortunes  and  in  ruined  lives,  and  yet 
we  venerate  it  for  its  age  and  clutch  it  as  a 
rock  of  refuge. 

When  I  survey  the  ground  o'er  which  I've 
passed,  writing  of  bench  and  bar,  the  jury  and 
the  court,  the  mass  of  faults  that  do  appear  to 
mar  and  block  the  courts  in  their  high  function 
and  the  enormous  loss  incurred  thereby,  I  sicken 
at  the  sight.  I  can  not  hope  these  lines  of  mine 
will  move  these  mountains  in  the  path  of 
progress,  or  even  cut  a  trail  across  them.  The 
first  explorer  rarely  scales  the  loftiest  peaks. 
A  few  steps  upward  in  the  steep  and  flinty  rock 
he  cuts  with  patient  toil  and  dies ;  another  start- 
ing where  he  ceased  may  cut  a  few  steps  more 
and  be  succeeded  by  another  still,  who  also  cuts 
and  climbs  until  some  future  climber  completes 
the  task  and  stands  upon  the  top  and  sees  the 
glorious  vision  of  the  world  beyond.  So  I  be- 
hold the  labor  here  essayed,  and  hope  these  sev- 
eral efforts  of  my  pen  may  prove  so  many  steps 
that  upward  lead  to  truth  in  this  regard  and 
that  when  I,  exhausted  with  my  worn-out  tools, 
must  cease,  another,  abler,  stronger,  than  myself, 
fresh  to  the  task,  with  sharper  tools  than  I  have 
had,  may,  where  I  cease  begin,  and  so  toil  on 
until  at  last  some  future  toiler  finishes  the  task 


142        FRAILTIES   OF   THE  JURY 

and  in  the  coming  years  humanity  may  stand 
upon  the  highest  peak  and  there  behold  the 
da\\Tiing  of  that  glorious  day  when  Justice 
linked  with  Liberty  shall  dwell  in  all  the  earth. 


FOIBLES  OF  THE  BENCH' 


A    Remarkable    Volume    by    Henry    S.    Wilcox 
of  the  Chicago  Bar 

PRESENTING 
Judge  Knowall  Judge  Wasp 

Judge  Wabbler  Jude  Wind 

Judge  Fearful  Judge  Graft 

Judge  Whififet  Judge  Doall 

and  many  others,  who  will  readily  be  recognized  as  types  of 
ancient  and  modern  Judges,  also  depicting  faults  and  abuses 
in  judicial  procedings  and  suggesting  remedies.  To  a  judge 
or  a  lawyer  this  volume  is  of  great  value  and  to  the  gen- 
eral reader  it  is  a  source  of  great  instruction  and  amuse- 
ment. It  corresponds  in  size  and  color  with  this  volume  on 
"Frailties  of  the  Jury." 

Read  what  the  press  say  : 

Press,  Pittshurg,  Pa. :  "The  book  is  assuredly  amusing 
and  entertaining  and  the  stories  told  are  all  full  of  humor 
and  wit." 

Western  Christian  Advocate,  Cincinnati,  Ohio:  "The vol- 
ume abounds  with  penetrating  comment,  shrewd  suggestions, 
sagacious  observations  mixed  with  rhetorical  exaggerations 
and  sharp  sayings  galore." 

Times,  Seattle,  Washington :  "Mr.  Wilcox's  analysis  of 
men  and  his  delineation  of  the  tricks  of  the  lawmaker  make 
him  a  novel  and  curiously  interesting  showman." 

Buffalo  Courier :  "The  author  indulges  in  many  clever 
and  good-natured  hits  at  the  weak  points  oftentimes  found 
in  justices  of  wide  reputation." 

The  Bee,  Sacramento,  Cal. :  "This  volume  will  be  much 
appreciated  by  the  Bench  and  the  Bar." 

The  Journal,  Albani/,  N.  Y.  :  "The  book  is  clever,  the 
diction  pleasing,  and  must  meet  with  a  large  sale,  and  will 
live  in  literature  for  some  time  to  come." 

Commercial-Appeal,  Memphis,  Tenn.  :  "It  teaches  a 
wholesome  lesson  to  the  Bench." 

Republican,  Denver,  Col. :  "A  strong  sense  of  humor,  a 
keen  wit  and  the  power  to  penetrate  the  disguise  of  the 
human  heart  combine  with  a  nimble  mind  and  ready  pen  to 
produce  here  a  book  that  every  lawyer  will  want  to  read." 

The  Public,  Chicago  :     "It  is  as  interesting  as  fiction." 

Eagle,  Brooklyn,  N.  Y.  :  "It  should  prove  as  Interesting 
to  the  general  reader  as  members  of  the  legal  profession." 

Louisville  Courier- Journal :  "Judicial  foibles  are  held  up 
to  scorn  on  the  author's  rapier  point." 

Chicago  Tribune :  "All  character  sketches  are  written 
in  a  racy  style  and  abound  with  humorous  incidents." 

Chicago  Journal :     "It  is  exceedingly  Interesting." 

Chicago  Record-Herald :  "Its  brief  sentences  are  packed 
with  meaning." 

PRICE  $1.00  POSTPAID 


"FOIBLES  OF  THE  BAR" 

BY 

HENRY    S.    WILCOX 

(Of  the  Chicago  Bar) 

AUTHOR  OF 

"  Foibles  of  the  Bench,  Etc." 


It  contains  163  pages  and  corresponds  in  size  and  color 
witli  this  volume.  It  introduces  many  types  of  lawyers  and 
points  out  the  faults  and  mistakes  that  prevent  success  and 
shows  how  to  avoid  them.  Every  page  is  worth  more  than 
the  price  of  this  book  to  the  lawyer  or  the  student  who  in- 
tends to  become  such  ;  and  it  is  of  great  value  to  the  general 
reader  on  account  of  the  delight  and  instruction  which  it 
gives. 

Read  What  the  Press  Say: 

Detroit  Journal :  "No  better  guide  could  be  put  in  th« 
hands  of  the  newly  fledged  lawyer." 

Grand  Rapids  Herald :  "The  hook  is  well  written  and 
skillful  in  its  character  drawing." 

Detroit  l^ews  :  "The  book  is  replete  with  stories,  humor- 
ous instances  and  funny  sayings." 

Buffalo  Evening  News :  "The  style  is  clear  and  racy, 
the  character  sketches  well  drawn  and  highly  interesting, 
and  the  book  is  replete  with  funny  stories,  humorous  inci- 
dents and  witty  sayings." 

Brooklyn  Citizen  :  "The  book  is  abundant  in  spicy  and 
humorous   sayings." 

Cleveland  Plain  Dealer  :  "rhc  book  is  distinctly  enter- 
taining." 

Salt  Lake  Tribune  :  "Each  subject  is  worked  out  in  ad- 
mirable form,  and  every  lawyer  can  get  points  from  it  of 
value  to  him." 

PRICE  $1.00.  POSTPAID 


"A  STRANGE  FLAW" 

BY 

HENRY  S.  WILCOX 

(Of  the  Chicago  Bar) 

AUTHOR  OF 

Foibles  of  the  Bench,  Etc. 


A  powerful  novel,  telling  the  story  of  a  man  oppressed 
by  taunts,  sneers  and  abuses,  who  turned  upon  his  oppress- 
ors and  by  a  scheme  well  executed  succeeded  through  the 
agency  of  the  legislature,  court  and  high  officials  of  the 
Government  in  punishing  some  of  those  who  had  abused 
him.  The  novel  opens  at  the  President's  inaugural  ball  and: 
concludes  at  the  Tresident's  mansion.  It  has  a  well-told 
love  story  running  through  it  and  depicts  many  interesting: 
scenes  of  American  life ;  is  replete  with  wit,  sacasm  and' 
pathos  and  exposes  many  forms  of  official  rascality. 

Sunday  Examiner  and  American,  Chicago  :  "The  most 
caustic  passages  in  Mr.  Wilcox's  previous  books  were  honey 
and  water  compared  to  the  least  blast  of  this." 

Brooklyn  Citizen  :  "A  good  love  story  is  woven  into  the 
tale.  *  »  ♦  The  great  debate  on  the  land  grant  bill  is 
a  clever  bit  of  satire.  *  ♦  •  One  is  apt  to  finish  this 
novel  at  one  sitting,  so  interestingly  is  the  story  told." 

Portsmouth  Daily  Chronicle :  "Mr.  Wilcox  tackles  a 
problem  with  great  courage.  *  *  *  In  assailing  present- 
day  conditions  he  minces  words  not  at  all.  •  *  «  ^piig 
*^pes  are  easily  recognized  and  in  the  main  true  to  life." 

Kansas  City  Star :  "The  amusing  satires  upon  legal 
practice  redeem  this  story  from  its  general  ferocity." 

GILT  TOP.  270  PP.     PRICE  $150  . 


"THE  TRIAL  OF  A 

STUMP  SPEAKER" 

WRITTEN  BY 

HENRY  S.  WILCOX 

(Of  the   Chicago  Bar) 

AUTHOR  OF 

"FOIBLES  OF  THE  BENCH" 

"A  STRANGE  FLAW."  ETC. 


It  is  a  series  of  sketches  and  humorous  incidents  occur- 
ring during  the  many  years'  experience  of  the  author,  illus- 
trating the  difficulties,  disappointment  and  annoyances  that 
beset  a  stump  spealier,  and  some  of  the  absurdities  and  in- 
consistencies of  politics.  Cloth  bound,  75  cents. 
The  Courier,  Buffalo,  N.  Y.,  July  20,  '00  : 

"It  is  one  of  the  funniest  efforts  in  the  way  of  humorous 
books  of  recent  publication." 
'Tournal,  Albany,  N.  Y.,  July  25,  '06,  says  : 

"It  makes  refreshing  reading  and  is  just  the  book  to 
take  on  the  train  or  steamboat  when  you  travel.  It  makes 
the  time  go  rapidly.  There  is  a  freshness  about  it  that  is 
most  enjoyable." 

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